University of Amsterdam Law Faculty
Master thesis
The status of ECtHR judgments in the domestic legal order: a comparative analysis of the UK and Russia
Eglė Rekašiūtė
Thesis supervisor: Rosanne van Alebeek
Table of Contents
1. Introduction ... 4
2. The status of judgments of the ECtHR in domestic legal orders ... 7
2.1. Introduction ... 7
1.2. Constitution as a limit in Germany and Italy ... 8
2.1.1. Germany ... 8
2.1.2. Italy ... 10
2.2. The United Kingdom ... 14
2.3. Russia ... 17
3. Comparative analysis ... 22
3.1. Three factors of success ... 22
3.2. Russian practice in relation to the three factors of success ... 23
3.2.1. Fundamental principle ... 24
3.2.2. Justification ... 26
3.2.3. Judicial dialogue ... 29
4. Conclusions ... 32
Abstract
The aim of the thesis is to identify the circumstances under which disobedience by national courts may be seen as constructive dialogue and when it becomes nothing more than a violation of the ECHR. In attempt to find the answer, this thesis focuses on similarities and differences between approaches of different jurisdictions. It examines case-law of Germany, Italy, the United Kingdom and Russia. The case-law reveals that the highest courts of these states try to solve the issue of multipolar fundamental rights situation and apply counter-limits doctrine. The common issue emphasized by all national courts is that on the one hand, national courts, depending on the national legal system, have to ensure that they obey the rules of international law and on the other hand, they have to protect the overall balance of domestic legal system. However, each court does it in a different manner. The main difference is discussed between the UK Supreme Court and Russian Constitutional Court attitude towards the judgments of the ECtHR. The UK is considered to be an example of the judicial dialogue, which encourages the cooperation with the ECtHR and solves the contradictions between national law and the Convention. In contrast, Russian Constitutional Court, although in some cases trying to show the willingness to engage into dialogue, lacks the main criteria that are necessary to engage into judicial dialogue that does not constitute mere violation of the ECHR.
1. Introduction
According to article 46(1) of the European Convention on Human Rights (ECHR)1, the state party against which an application has been brought is bound by the European Court of Human Rights’ (ECtHR) final judgment. However, the practice of the Council of Europe (CoE) member states shows that domestic law determines the status of the ECHR and the Strasbourg Court’s judgments in the national legal order.2 In recent years, it has become increasingly clear that Strasbourg judgments are not always considered binding as a matter of domestic law. The domestic law barrier against the ECHR and ECtHR jurisprudence is formulated differently in different states. For example, the United Kingdom’s Human Rights Act3 expressly provides that national courts ‘must take into account’ judgments of the European Court of Human Rights when ‘determining a question which has arisen in connection with a Convention right’. However, if the UK’s national courts have concerns as to whether a decision of the ECtHR is inconsistent with some fundamental substantive or procedural aspect of domestic law, national courts are not bound to follow every decision of the ECtHR. In Italy, Germany and Russia on the other hand, the Constitution is considered to rank higher than the ECHR, which means that Strasbourg judgments, which are considered to violate the Constitution, may not be followed by the national courts.
Surprisingly maybe, this ‘disobedience’ of domestic courts is not always considered to be a negative thing. On the contrary, it has been remarked by Giuseppe Martinico that disagreements between national and international courts sometimes may trigger negotiation and this confirms that conflict and dialogue should not be seen as antithetical concepts.4 This development is often described as ‘constructive dialogue’, where national judicial disobedience is based on a constructive exchange of arguments between national courts and the ECtHR.5 Other scholars describe this as a strategy of ‘reasonable resistance’, which means that national courts increasingly tend to mitigate effects of a clash between constitutional and international legal norms by identifying some common and strict
1 Convention for the Protection of Human Rights and Fundamental Freedoms European, as amended by
Protocols Nos. 11 and 14 (adopted 4 November 1950, entered into force 3 September 1953) ETS 5.
2 According to Malcolm N. Shaw, it is a general feature of the international law that the status of international
law within municipal law depends upon country's national legal system. For instance, in a dualist system ‘the rules of the systems of international law and municipal law exist separately and cannot purport to have an effect on, or overrule, the other' and in a monist system international law and national law is a uniform system. See: Malcolm N. Shaw, International Law (6ed, CUP 2008) 131.
3 Human Rights Act, adopted 9 November 1998 (entered into force 2 October 2000), s 2.
4 Giuseppe Martinico, ‘Is the European Convention Going to Be ‘Supreme’? A Comparative-Constitutional
Overview of ECHR and EU Law before National Courts’ (2012) 23 EJIL 401, 423.
parameters, under which recourse to counter-limits would be more tolerable also from the standpoint of international law.6 For instance, in the R v Horncastle and Others v. the UK case7 the ‘dialogue’, which takes place between the UK courts and the ECtHR is valued. In stark contrast to this stands the reaction to the 2015 Russian law which mandates the Russian Constitutional Court to declare judgments of the ECtHR ‘impossible to implement’ because of incompatibility with the Russian Constitution8. The Venice Commission in its final opinion stressed that ‘this is incompatible with the obligations of the Russian Federation under international law’.9 Apparently, while under international law all non-implementation is a violation of the Convention obligations, different forms of disobedience are valued differently.
Against this background, the question arises whether it is possible to identify the limits of constructive dialogue and reasonable contestation – when does disobedience become nothing more than a violation of the ECHR? In an attempt to answer this question, the thesis sets out to map the court practice of two forms of disobedience of ECtHR judgments in the UK and Russia, also looking into earlier practice and relevant developments in Germany and Italy. The research will focus on such questions as: what are the similarities and differences between the approaches in those four jurisdictions? And can we identify the circumstances under which disobedience by national courts may be seen as constructive dialogue? Finally, this thesis will inquire into the overall consequences of the increasingly critical attitude of domestic courts towards ECtHR judgments.10
The research will focus on the status of ECtHR judgments in the domestic legal orders and the practices of the national courts (not)following the judgments of the Strasbourg Court. Chapter 2 will employ descriptive and explanatory methods in order to explain the bindingness of the ECtHR judgments under international law and the relationship between ECtHR and national courts. Through the examples of Germany and Italy it will be examined
6 Fulvio Maria Palombino, ‘Compliance with International Judgments: Between Supremacy of International
Law and National Fundamental Principles’ (2015) 75 ZaöRV 503.
7 R v Horncastle and others [2009] UKSC 14.
8 The Constitution of the Russian Federation, 1993 (with the Amendments of 30 December 2008, 5 February, 21
July 2014).
9 Venice Commission, ‘Final Opinion on the Amendments to the Federal Constitutional Law on the
Constitutional Court’, CDL-AD 016 (13 June 2016) 35.
10 Non-execution of ECtHR judgments may also stem from other problems, like refusal to issue legislation in
Parliament (Hirst v United Kingdom (No 2) App no 74025/01 (ECtHR, 6 October 2005), but that that is not within the scope of this research.
how states use the counter-limits doctrine, flag the idea that the ‘constitution is a limit’ and recognize or do not accept the primacy of international law over fundamental national (constitutional) principles in relation to ECtHR judgments. Furthermore, it will present the significant cases of the United Kingdom and Russia, which illustrates recent practices of the Supreme and Constitutional courts on disobedience of the ECtHR’s decisions and different relationship with the Strasbourg Court. While using evaluation and comparative analysis methods, Chapter 3 will discuss positive and negative effects as well as similarities and differences of the case-law discussed, the opinions of the scholars, domestic courts and ECtHR and the main issues that arise in the relationship between national courts and the Strasbourg Court. Finally, Chapter 4 will offer concluding remarks on the issue.
2. The status of judgments of the ECtHR in domestic legal orders 2.1. Introduction
Human rights protection takes place on a national, international, and supranational level. The ECtHR rules on individual or state applications alleging violations of the civil and political rights as set out in the European Convention on Human Rights.11 Article 46 of the ECHR entails an obligation for the states parties to execute a Court’s judgment in which it has found a violation of the Convention. In other words, member states of the CoE are bound by the ECtHR’s final judgment in a case to which they are parties.12 Furthermore, under Article 27 of the Vienna Convention on the Law of Treaties13, which provides that states cannot invoke the domestic law to justify the non-performance with an international obligation, the domestic courts must follow the Strasbourg Court. These legal provisions clearly indicate that states are bound by decisions of international courts and must offer individual protection at the domestic level in accordance with international law.
The European human rights system is generally considered to be harmonious, national courts tend to cooperate and accept the case-law of ECtHR.14 However, the formal status of the ECHR and the judgments of the ECtHR in various CoE member states, does leave room for contestation and disobedience. As it will be seen from the case-law, the cooperation and the dialogue between the ECtHR and domestic courts is not always an easy case. The protection at different levels leads not only to the strengthening of human rights but also to collisions of fundamental laws.15 This chapter starts with a discussion of the legal status of the ECtHR judgments in Germany and Italy in section 2.2, as the highest courts in these states were the first to formulate counter-limits doctrines in regards to the ECHR. Then, in
11 European Court of Human Rights, ‘The Court in Brief’ (ECtHR, 2018). 12 ECHR (n 1).
13 Vienna Convention on the Law of Treaties (23 May 1969) 1155 UNTS 331, entered into force 27 January
1980 (VCLT).
14 Nico Krisch underlined that ‘despite national court’s insistence on their final authority, the normal, day-to-day
operation of the relationship with the Strasbourg Court has lately been highly cooperative, and friction has been rare’. See: Nico Krisch, ‘The Open Architecture of European Human Rights Law’ (LSE 2007) 16 < https://ssrn.com/abstract=1018991>. Furthermore, the President of the ECtHR Guido Raimondi also welcomed the intense dialogue with national and international courts. See: European Court of Human Rights, ‘Annual Report 2017’ (ECtHR, 2018). Janneke Gerards found that ‘it is clear that the courts prefer to avoid violations of the ECHR by interpreting and applying provisions of national law as far as possible in conformity with the ECHR and with the case-law of the ECtHR. See: J.H. Gerards and J.W.A. Fleuren, ‘Implementation of the ECHR and the case-law of the European Court of Human Rights in national case-law. A comparative study. Executive Summary’ <https://www.wodc.nl/binaries/2106-summary_tcm28-72096.pdf> accessed 29 May 2018.
15 Johanna Rinceanu, ‘Judicial dialogue between the European Court of Human Rights and national supreme
section 2.3 the more recent practice of the UK and Russia will be mapped and analysed.
2.2. Constitution as a limit in Germany and Italy
When international law governs legal rights and obligations of private persons, domestic authorities expect it to conform to equivalent standards of the rule of law and protection of fundamental rights that apply at the domestic level.16 However, that it not always the case and domestic courts sometimes have to disagree with and react to the jurisprudence of the ECtHR. This form of disagreement is often referred to as the counter-limits doctrine, where domestic courts refuse to follow decisions of ECtHR which are inconsistent with fundamental principles of national law or which would entail a violation of the Constitution. In other words, domestic courts at times challenge the supremacy of international law and international judgments, because of the need to safeguard national fundamental principles.17 One of the best-known examples analysed by the scholars in this context are cases of Germany and Italy.
2.1.1. Germany
In general, Germany has certainly always been a willing party to the Convention and ready to fulfil its obligations under Article 46 of the ECHR.18 However, it is up to the states how they will give the effect to the Convention and what status it will have in their national legal orders. In Germany, the Convention and its protocols have the status of a federal statute.19 Its position is strengthened by a presumption that other statutes are not intended to violate it20 and by interpreting the provisions of the Constitution in an ‘international law-friendly’ manner.21 Furthermore, there is no fundamental or widespread public criticism in Germany of the role of the ECtHR.22 However, in those countries, where the Convention is not the supreme law of the land, there is a theoretical possibility of conflict between the Convention
16 A. Nollkaemper, ‘Rethinking Supremacy of International Law. Amsterdam Center for International Law
Working Paper’ (2009) 8 <https://ssrn.com/abstract=1336946> accessed 4 June 2018.
17 Palombino (n 6) 506.
18 Gertrude Lübbe-Wolff, ‘ECHR and national jurisdiction - The Görgülü Case’ (2006) 12 HRF 2. 19 ibid.; Rinceanu (n 15) 1037.
20 Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (OUP 2010) 112. 21 Rinceanu (n 15) 1037.
22 Eckart Klein, ‘Germany’ in Janneke Gerards and Joseph Fleuren (eds), Implementation of the ECHR and of
and domestic law.23 Thus, there are a few judgments of the national courts that raised some criticism and discussions in the context of the status of the ECtHR in the German legal order. One of the most well-known examples is the Bundesverfassungsgericht’s (BverfG, or the Federal Constitutional Court) decision 1481/0424 on the Görgülü v. Germany case25 of a Turkish citizen in Germany, Mr. Görgülü, seeking custody of and access to his son. In this case, the German Federal Constitutional Court has rendered a decision concerning the relationship between national and international law and jurisdiction where the court ruled that, in case of unresolvable conflicts between the ECHR and the Constitution, the latter should prevail.26 This means that the Constitution may prevent national courts from giving effect to the ECtHR’s judgment, when the interpretation of the rights under the Convention would restrict the protection of the rights under the Constitution.27 The Court introduced a new legal term – ‘the multipolar fundamental rights situation’28, which emphasised the issue of the clash between constitutional and international human rights. In the context of human rights protection in multi-level systems, the ECtHR was criticized for a one-sided decision and not considering conflicting human rights in a balanced way.29 Thus, with this judgment the German Federal Constitutional Court signalled limits to its loyalty to the ECtHR30, the ECHR’s penetration into the domestic legal order and specified the status of the ECtHR decisions in German legal system.
The president of the ECtHR, scholars and international lawyers at that time expressed concern about the Federal Constitutional Court decision and interpreted it as a denial of binding force to ECtHR judgments. In particular, criticism was expressed as to the language and specific terms used by the German court. While describing the relationship between national courts dealing with ECtHR judgments, the BverfG instead of using traditional terms such as ‘abide by’, ‘obey’ or ‘implement’, used terms like ‘take into account’31 and
23 Lübbe-Wolff (n 18) para 6.
24 Bundesverfassungsgericht, decision No. 1481/04, 14 October 2004. 25 Görgülü v. Germany App no 74969/01 (ECtHR, 26 February 2004). 26 Decision 1481/04 (n 23) paras 35 – 37.
27 Nollkaemper (n 16) 22.
28 Sophie-Charlotte Lenski, ‘Human Rights Protection in Multipolar Legal Relationships’ in Katja S. Ziegler
and Peter M. Huber (eds), Current Problems in the Protection of Human Rights: Perspectives from Germany
and the UK (Hart Publishing 2013) 143, 148; Görgülü para 50 (‘mehrpolige Grundrechtsverhältnisse auszugestalten haben’).
29 ibid. 149.
30 Krisch (n 19) 110.
31 According to the Federal Constitutional Court in the Görgülü case, ‘[i]f, in concrete application proceedings
in which the Federal Republic of Germany is involved, the ECtHR establishes that there has been a violation of the Convention [...] the judgment of the ECtHR must be taken into account in the domestic sphere, that is, the responsible authorities or courts must discernibly consider the decision and, if necessary, justify understandably why they nevertheless do not follow the international law interpretation of the law.’
‘consider’.32 Therefore, the case raised the question, whether the German Constitutional Court questioned the authority and binding nature of the decisions of the European Court of Human Rights.33 The answer to this question could be found in the statement by Director of the Directorate of Legal Advice and Public International Law of the Council of Europe Jörg Polakiewicz, who stressed that ‘the multipolar fundamental rights situation’ has never prevented any German court from complying with a particular ECtHR judgment. Furthermore, he agreed with the opinion of the Federal Constitutional Court that ECtHR judgments should never be ‘schematically’ applied by national judges. For instance, the
Görgülü case involved the best interests of the child, which requires not only legal, but also
comprehensive psychological evaluation of the situation. Therefore, such cases have to be done by the competent national authorities and their results will necessarily evolve over time.34 Thus, the Federal Constitutional Court did not disobey the ECtHR judgments, but only considered the theoretical possibility of a conflict between domestic law and the Convention as well as the consequences if such a situation occurs.35
Furthermore, although the Federal Constitutional Court stressed the possibility to depart from the ECtHR’s case-law, the decision was considered even as strengthening the role of the Convention.36 The Federal Constitutional Court underlined that national courts have to interpret the domestic law and the Constitution in accordance with the Convention and obligations under international law.37 The BverfG stated that it is the task of the domestic courts to integrate a decision of the ECtHR into the relevant partial legal area of the national legal system by balancing conflicting rights and that the ECtHR could not aim to achieve such solutions itself.38
2.1.2. Italy
Another national court that has also stressed that the Constitution is a limit to the implementation of the ECHR at the national level is the Italian Corte Costituzionale
32 Lübbe-Wolff (n 18) para 3. 33 ibid. para 9.
34 Jörg Polakiewicz, ‘Between 'Res Judicata' and 'Orientierungswirkung – ECHR Judgments Before National
Courts’ (CoE, 19-21 June 2017) <https://www.coe.int/en/web/dlapil/-/between-res-judicata-and-orientierungswirkung-> accessed 2 May 2018.
35 Lübbe-Wolff (n 18) para 17; Frank Hoffmeister, ‘Germany: Status of European Convention on Human Rights
in domestic law’ (IJCL 2006) 722, 730.
36 Lübbe-Wolff (n 18). 37 ibid. para 9.
(Constitutional Court). In 2007, after the constitutional reforms39, the Constitutional Court in its ‘twin judgments’40 clarified the position of the ECHR in the domestic legal system by stating that the Convention ranks between statutes and constitutional norms.41 This was done in order to end a new judicial practice, which started to emerge after the Granital case42, where the Italian Constitutional Court held that domestic courts can solve the conflicts between EU law and national law by giving priority to the EU norm which has direct effect. Consequently, some Italian courts started to use this method in human rights cases and directly apply the Convention norms, which were considered to prevail over the relevant internal rules.43 Thus, the ‘twin judgments’ rejected this judicial approach and clarified that only the Constitutional Court has the power to decide on the conflicts between domestic law and the Convention. As a result, the Constitutional Court in order to decide on the constitutionality of the domestic law had to firstly assess the ECHR norm compatibility with the Italian Constitution and only then compare the domestic law with the Convention. This new practice illustrated that the Constitutional Court used the Constitution as a limit for the application of the Convention.44 Furthermore, in this case the Italian Constitutional Court introduced ‘enlarged counter limitation’ applicable to possible inconsistencies between Italian law and the ECtHR.45 Under this doctrine, the Constitutional Court reserved for itself the power to verify whether the ECHR, as interpreted by the Strasbourg Court, was consistent with all other constitutional values.46 The difference from the traditional counter-limits doctrine was the necessity that the Convention had to be consistent with the whole Constitution and not just with the fundamental constitutional principles as it is in traditional ‘counter-limits’ doctrine.47
In 2009 the Italian Constitutional Court delivered another judgment48 in reaction to a judgment of ECtHR in the Lautsi v. Italy49 case. The Chamber in this case found that
39 Constitutional Law no. 3 of 2001 introduced a specific reference to international obligations into Article 117,
paragraph 1, It. Const.: ‘Legislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from European Union law and international obligations.’
40 Corte Costituzionale, Judgments of 22 October 2007, Sentenze 348 & 349/2007. 41 Martinico (n 4) 411.
42 Corte Costituzionale, SpA Granital v. Amministrazione delle Finanze, Dec. 170, 8 June 1984.
43 Alessia Cozzi, ‘The implementation of the European Convention on Human Rights and the European Court of
Human Rights case-law in Italian jurisprudence’ in Silvija Panović-Đurić (ed) Comparative study on
implementation of the ECHR at the national level (CoE 2016) 36.
44 ibid.
45 Raffaele Sabato, ‘The Experience of Italy’ in Amrei Müller (ed), Judicial Dialogue and Human Rights (CUP
2017) 273.
46 Sabato (n 45). 47 Martinico (n 4) 415.
48 Corte Costituzionale, Judgment of 16 November 2009, Sentenza 311/2009. 49 Lautsi v. Italy App no 30814/06 (ECtHR, 3 November 2009).
crucifixes in classrooms violated the freedom of religion50 and the right to education51 and held for the applicant, which caused enormous controversy not only in Italy, but also in the international arena.52 In reaction to this case, the Italian Constitutional Court in the judgment No. 311/2009 went a little bit further than in the ‘twin judgments’ and it not only clarified the position of the ECHR in the domestic legal order, but also explicitly stated that there is a theoretical possibility of domestic courts not following the decisions of the ECtHR.53 The Italian Constitutional Court stated that in exceptional cases the non-implementation of the ECtHR judgments can be justified by the need to find a reasonable balance between international obligations and constitutionally protected interests.54 It is considered that this judgment triggered the reversal by the Grand Chamber of the ECtHR of the Chamber judgment [its initial attitude towards crucifixes in Italian schools] in the Lautsi case.55
This reaction by the Italian Constitutional Court to the ‘unwelcomed’ judgment of the ECtHR was similar to the already discussed practice of the German Federal Constitutional Court, because the statements in the BverfG’s judgment on the Görgülü case were also considered as the Federal Constitutional Court’s response to the ruling of the ECtHR in the
Hannover v. Germany56 case.57 Thus, both Constitutional Courts reacted to the ECtHR judgments, which could violate the fundamental principles of the Constitution.
Moreover, in a more recent judgment No. 49/201558, the Constitutional Court clarified the role of Italian judges in relation to the ECtHR’s case-law59 and ‘indirectly tried to put the brakes on the ECtHR’s evolutionary jurisprudence itself’.60 In this judgment the Constitutional Court held that domestic courts are bound to follow only ‘well-established’
50 ECHR, Article 9.
51 Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms
(adopted 20 March 1952, entered into force 18 May 1954) ETS 9.
52 Grigory Vaypan, ‘Acquiescence affirmed, its limits left undefined: the Markin judgment and the pragmatism
of the Russian Constitutional Court vis-à-vis the European Court of Human Rights’, (2014) 2 RJL 130, 137.
53 Krisch (n 14) 110-111. 54 Vaypan (n 52). 55 Vaypan (n 52).
56 Von Hannover v. Germany App no 59320/00 (ECtHR, 22 June 2005). In this case, there was a clash between
two different rights – the right to privacy and the right to freedom of speech. Federal Constitutional Court considered that the balance struck in Strasbourg could violate the freedom of speech under German Constitutional law.
57 Felix Müller and Tobias Richter, ‘Report on the Bundesverfassungsgericht’s (Federal Constitutional Court)
Jurisprudence in 2005/2006’ (2008) 9 GJL 161, 169.
58 Corte Costituzionale, Judgment of 14 January 2015, Sentenza 49/2015. Translation in English:
<https://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S49_2015_en.pdf>.
59 Andrea Pin, ‘Mini-Symposium: Pin and Tega on Italian Constitutional Court Judgment No. 49/2015’
(Iconnectblog, 1 May 2015) <http://www.iconnectblog.com/2015/04/mini-symposium-on-cc-judgment-49-2015/> accessed 1 July 2018.
case-law of ECtHR or when it was laid down in a pilot judgment.61 The Constitutional Court instead of leaving only the Constitution as a limit for the reception of the ECtHR judgments, narrowed the domestic impact of the ECHR by saying that it will not always follow the ECtHR on its interpretation of the Convention. The Constitutional Court ruled that ‘it is thus only ‘consolidated law’ resulting from the case-law of the European Court on which the national courts are required to base their interpretation, whilst there is no obligation to do so in cases involving rulings that do not express a position that has not become final’.62 However, instead of explicitly indicating the criteria in order to identify ‘consolidated’ law, the Constitutional Court specified some criteria of ‘non-consolidated’ case-law, such as the following63: the creativity of the principle asserted compared to the traditional approach of European case-law (innovative nature); distinction or even contrast from other rulings of the Strasbourg Court; robust dissenting opinions; has not been endorsed by the Grand Chamber; correct assessment by the ECtHR of the particular characteristics of the national legal system.64 This rule raised criticism on what is ‘consolidated’ case-law. First of all, it is argued that the Constitutional Court’s term ‘consolidated law’ is totally different from the concept of ‘well-established’ case-law, because the latter permits ECtHR to differentiate case-law according to the simplicity of its interpretation, but it does not say anything about the binding force of its judgments.65 Secondly, even though the court indicated the criteria, it was still not clear where is the actual turning point.66 For instance, the criteria of the case-law to be innovative nature is not clear, as many cases in Strasbourg are innovative because of the dynamic interpretation doctrine. Also, the fact that the decision made originates from an ordinary division and has not been endorsed by the Grand Chamber has to be considered when qualifying the case as ‘well-established’. However, it is doubtful whether it is relevant criteria, because the Chamber judgment is as binding as the Grand Chamber judgment.67 Recently, this was pointed out by the Grand Chamber in the judgment on G.I.E.M. S.R.L. and
61 Sentenza 49/2015 (n 58) para 7. 62 ibid.
63 Judge Pinto de Albuquerque, ‘Partly Concurring, Partly Dissenting Opinion of Judge Pinto de Albuquerque’
104 in G.I.E.M. S.R.L. and Others v. Italy App nos 1828/06, 34163/07 and 19029/11 (ECtHR, 28 June 2018).
64 Sentenza 49/2015 (n 58) para 7. 65 Judge Pinto (n 63) 105.
66 Pietro Pustorino considers that the criteria are ‘vague and questionable’. See: Pietro Pustorino ‘Russian
Constitutional Court and the execution ‘à la carte’ of ECtHR judgments’ (QIL, 31 October 2016) <http://www.qil-qdi.org/russian-constitutional-court-execution-la-carte-ecthr-judgments/> accessed 14 May 2018.
67 Roberto E Kostoris, Handbook of European Criminal Procedure (Springer International Publishing 2018);
Kanstantsin Dzehtsiarou, Natasa Mavronicola, ‘Relation of Constitutional Courts / Supreme Courts to ECtHR’ (MPECCoL, 2016) para 21 <http://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e572> accessed 17 July 2018.
Others v. Italy68 case, where it emphasised that ‘[the ECtHR] judgments all have the same legal value. Their binding nature and interpretative authority cannot therefore depend on the formation by which they were rendered’.69 This was considered as a direct response to Constitutional Court’s judgment No. 49/2015 and as a ‘message sent to all supreme and constitutional courts in Europe’.70
In the three years since this judgment, the Constitutional Court has not provided any further guidance on how to interpret or apply the criteria in order to identify consolidated law.71 Therefore, the use of the ‘consolidated law’ test by the domestic courts has been quite chaotic. Judge Paulo Pinto de Albuquerque argued that ‘the way the criterion has been applied gives the impression that it allows for any conclusion that would be convenient for domestic authorities. One judge’s ‘consolidated’ law is another judge’s ‘non-consolidated’ law. All bets are off.’.72 Thus, this judgment of the Italian Constitutional Court is considered as potentially very far-reaching and allowing lower domestic courts to disregard any case-law of the ECtHR that they do not agree with. Although up to the present time, German or Italian Constitutional courts have not actually declared the incompatibility of the ECHR with the Constitution, they noticed the possibility, that in case of the conflict between the Convention and the Constitution, the latter should prevail. By analogy, this is applicable to the judgments of the ECtHR.
2.2. The United Kingdom
In contrast to Germany and Italy, in the United Kingdom the ECHR is incorporated into domestic law through the 1998 Human Rights Act (HRA). One of the most debatable provisions in the HRA is Section 2(1), which states that ‘a court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights’.73 It is discussed what this provision and the formulation ‘take into account’ actually means and to what extent the UK courts have to obey the decisions of ECtHR. According to the Supreme Court, the UK courts have to follow any clear and constant case-law of the
68 G.I.E.M. S.R.L. and Others v. Italy App nos 1828/06, 34163/07 and 19029/11 (ECtHR, 28 June 2018). 69 ibid. para 252.
70 Judge Pinto (n 63)106. 71 ibid. 110.
72 ibid.
Strasbourg Court, unless there are special circumstances74, such as when the Strasbourg Court does not sufficiently appreciate or accommodates particular aspects of the domestic legal system.75 Moreover, Lord Neuberger explained that ‘This court [the Supreme Court] is not bound to follow every decision of the European court… Of course, we should usually follow a clear and constant line of decisions by the European Court … But we are not actually bound to do so’.76 Thus, the expression ‘take into account’ lies somewhere in between the terms ‘follow’ or ‘ignore’, because national courts do not agree by this to completely follow the Strasbourg Court.77 The UK courts have to decide themselves on the case-by-case basis whether to follow the jurisprudence of the ECtHR. It has to be noted domestic courts are required to take into account all the case-law of the ECtHR and not only those brought against the UK.78
Regarding the extent to which the UK courts should be guided by Strasbourg case-law, the UK Supreme Court clarified its opinion in Manchester City Council v Pinnock case79, where it stressed that the Court is not bound to follow every decision of the ECtHR.80 It reasoned that blindly following every decision of the court would destroy the ability of the Court to engage in the constructive dialogue and to develop Convention law.81 Furthermore, it stated that if ‘there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line’.82 Although the UK does not have a constitution, it could be read as constitutional counter-limits doctrine, because if there is a fundamental principle, the UK courts will disregard Strasbourg judgments the same as in the cases where the constitutional norm is used as a barrier for the execution of international judgments. Therefore, the position of the UK Supreme Court is similar to the Constitutional Courts of Germany and Italy.
Even though the UK’s domestic courts have also limited the openness of its national
74 R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003]
2 AC 295, para 26; These special circumstances will be discussed below.
75 R v Horncastle (n 6) para 11.
76 Pinnock v Manchester City Council [2010] 3 WLR 1441, para. 48.
77 Adam Wagner, ‘Can Britain ‘ignore Europe on human rights’?’ (UK human rights blog, 23 October 2011)
<https://ukhumanrightsblog.com/2011/10/23/can-britain-ignore-europe-on-human-rights/> accessed 15 July 2018.
78 Alice Donald, Jane Gordon and Philip Leach, ‘Equality and Human Rights Commission Research Report 83:
The UK and the European Court of Human Rights’ (EHRCR, 2012) 9.
79 Manchester City Council v Pinnock (n 4). 80 Manchester City Council v Pinnock (n 4) para 48. 81 ibid.
legal system towards the ECHR case-law83, the UK is also an example of an active judicial dialogue between the national courts and ECtHR. The case that illustrates this is the UK Supreme Court’s judgment in the Horncastle case84, where it criticised the 2009 ECtHR’s Chamber judgment in Al-Khawaja and Tahery v UK85. These cases concerned the rule on
hearsay evidence in criminal proceedings, where the ECtHR held that the use of hearsay evidence would constitute a violation of Article 6 of the Convention. The Strasbourg Court consistently reiterated that criminal conviction could not be ‘solely or decisively’ based on hearsay evidence.86 However, the UK lawyers and judges argued that the ECtHR misunderstood the criminal proceedings in the UK and that the fair trial was protected in those special circumstances, where hearsay evidence was allowed. The ECtHR Chamber judgment was criticised for not taking sufficient account of the historical, cultural and other differences between the states parties.87 In the Horncastle case the UK Supreme Court, when hearing applicants’ appeal, examined the Al-Khawaja and Tahery judgment and invited the Grand Chamber to accept a request to rehear the case.88 The UK Supreme Court entered into dialogue with the ECtHR and discussed all the relevant case-law and the specifics of the national legal system. In its 2011 judgment the Grand Chamber reacted to the criticism on the
Al-Khawaja and Tahery Chamber judgment and agreed with the UK Supreme Court by
ruling that the ‘sole or decisive’ rule should not be applied in an inflexible way and it could be departed from if there were sufficient safeguards in the trial process.89
Generally, the UK Supreme Court is likely to follow principles enunciated by the Grand Chamber of the ECtHR.90 The Pinnock case suggested that departing even from clear Grand Chamber principles remains open ‘in theory’91 and the UK Supreme Court still could deviate and refuse to follow the Grand Chamber judgment. However, in the Chester v Secretary of
State for the Home Department case92 the UK Supreme Court limited this possibility and stated that where the matter has been considered by a Grand Chamber, ‘it would have then to
83 Martinico (n 4) 421. 84 R v Horncastle (n 6).
85 Al-Khawaja and Tahery v UK App no 26766/05 (ECtHR, 20 January 2009). 86 Howard Davis, Human Rights Law Directions (4edn, OUP 2016) 74.
87 Michael Pinto-Duschinsky, Bringing Rights Back Home: Making Human Rights Compatible with
Parliamentary Democracy in the UK (Policy Exchange, 2011); Jonathan Sumption ‘Judicial and Political
Decision Making: The Uncertain Boundary’ (F.A. Mann Lecture, 9 November 2011) <http://www.pem.cam.ac.uk/wp-content/uploads/2012/07/1C-Sumption-article.pdf> accessed 04 May 2018.
88 European Court of Human Rights, Conclusion of judicial dialogue between ECHR and UK courts on use of
hearsay evidence, (2014) ECHR 376.
89 Al-Khawaja and Tahery v UK (n 85). 90 Davis (n 86).
91 ibid.
involve some truly fundamental principle of our law or some most egregious oversight or misunderstanding before it could be appropriate for this court to contemplate an outright refusal to follow Strasbourg authority at the Grand Chamber level’.93
In general, the Horncastle case is constantly referred as a good example of judicial dialogue and it is not seen as an active contestation between the two courts. For instance, Joshua Rozenberg commented that this case demonstrated ‘the system working as it should’.94 Furthermore, it is thought that the re-evaluation by the Grand Chamber ‘probably avoided confrontation’ and proved that ‘the dialogue was effective - it is the best example of the dialogue working’.95 Even the President of the ECtHR at that time, Nicolas Bratza, stated that Al-Khawaja and Tahery case was a ‘good example of the judicial dialogue between national courts and the European court’.96
2.3. Russia
Article 15(4) of the Russian Constitution97 states that international law ranks above Russian domestic law. However, the recent practice of the Russian Constitutional Court shows some significant changes in the attitude towards the status of ECtHR judgments in the domestic legal order, which started in 2013 with the Konstantin Markin v. Russia case98 and reached a peak in 2017, when the Russian Constitutional Court delivered its judgment No. 1-P/201799 on the Yukos case100. Recently, Russia’s news agency announced that Russia may withdraw from the ECHR, because many of the court’s decisions ran counter to Russia’s interests and they have to be reversed.101 Russia argues that the Strasbourg Court is not doing enough to take into account the peculiarities of Russian law.102 Therefore, it can be seen that there is an ongoing tension between the Russian Constitutional Court and the Strasbourg Court and the
93 Chester v Secretary of State for the Home Department, para 27. 94 Donald (n 78) 140.
95 ibid. 139.
96 Joshua Rozenberg, ‘At last, Strasbourg heeds our supreme court’ (The Guardian, 2011)
<https://www.theguardian.com/law/2011/dec/15/strasbourg-heeds-uk-judges> accessed 05 May 2018.
97 The Constitution of the Russian Federation (n 8), Article 15(4).
98 Konstantin Markin v. Russia App no 30078/06 (ECtHR, 22 March 2012).
99 The Constitutional Court of the Russian Federation, Judgment of 19 January 2017, No 1-P.
100 OAO Neftyanaya Kompaniya Yukos v. Russia App no 14902/04 (ECtHR, 31 July 2014); Wolfgang Benedek,
‘Russia and the European Court of Human Rights: some general conclusions’ in Lauri Malksoo, Wolfgang Benedek (eds), Russia and the European Court of Human Rights (CUP 2017) 385, 386.
101 Andrew Griffin, ‘Russia could withdraw from European Convention on Human Rights, state news agency
RIA reports’ (Independent, 1 March 2018) <https://www.independent.co.uk/news/world/europe/russia-echr-human-rights-european-convention-putin-kremlin-eu-a8234086.html> accessed 10 May 2018.
relationship between the Russian Constitutional Court and the ECtHR has deteriorated for some time.
The turning point in the relationship between the Russian Constitutional Court and the Strasbourg Court was the Markin case, where the ECtHR for the first time disagreed with the position of the Russian Constitutional Court.103 After reopening the procedure in the domestic court, the Russian Constitutional Court passed a judgment No. 27-P/2013104 in which it for the first time expressed its view on the enforcement of the decisions if they conflict with the case-law of the Constitutional Court. Although the Constitutional Court did not proclaim priority of its decisions over ECtHR, it has instead held that it has the authority to decide on the constitutionality of the provisions that were differently assessed by the Constitutional Court and the ECtHR in a particular case.105 However, the Constitutional Court emphasised that it would determine possible constitutional means of implementation of the relevant judgment of the ECtHR within the limits of its competence.106 Therefore, this judgment left some leeway for the Constitutional court to embrace the decisions of ECtHR just as much as to deviate from it, depending on the circumstances of future cases.107
The relations between the two courts until mid-June 2015 were viewed as, if not always a ‘duet’, certainly not a ‘duel’ anyway.108 On the one hand, the judgment in the Markin case could be seen to be similar to the already discussed practice of other states, which emphasised the importance of counter-limits doctrine. But on the other hand, the decision of the Russian Constitutional Court is incomprehensible from the perspective of domestic law, which says that international law prevails over all domestic law. Thus, it is different from the practice of the Constitutional Courts in Germany and Italy.
Some scholars expressed concern over the developments in the past three years in Russia.109 In 2015, Russia passed the law110 allowing the Constitutional Court of Russia to decide whether or not to comply with judgements made by international human rights courts.
103 ECtHR held that the refusal to grant a three-year paternal leave to a male member of the military service has
the characteristics of gender discrimination. However, the Russian Constitutional Court’s position is that the disputed right cannot be granted to all military service personnel due to the particularities of military service and the need to ensure the defence capacity and safety of the state. See: Ilya Levin, Michael Schwarz, ‘At a crossroads: Russia and the ECHR in the aftermath of Markin’ (Verfassungsblog, 30 January 2015) <https://verfassungsblog.de/crossroads-russia-echr-aftermath-markin-2/> accessed 11 May 2018.
104 The Constitutional Court of the Russian Federation, Judgment of 6 December 2013, No. 27-P. 105 ibid.
106 ibid.
107 Vaypan (n 52) 131.
108 Sergey Marochkin, ‘ECtHR and the Russian Constitutional Court: duet or duel?’ in Lauri Malksoo,
Wolfgang Benedek (eds), Russia and the European Court of Human Rights (CUP 2017) 93, 108.
109 Lauri Mälksoo, Wolfgang Benedek, Russia and the European Court of Human Rights (CUP 2017).
110 Federal Law No.7-FKZ of 14 December 2015, on Amendments to the Federal Constitutional Law on the
This law was adopted in the light of the Resolution No. 21-P/2015 of the Constitutional Court111, which stated that judgments of the ECHR would not be implemented if they contradicted Russia’s constitution and that the Russian Constitution prevails over international law. However, this new law and the judgment of the Constitutional Court raised criticism on two aspects. First of all, the Venice Commission stressed that ‘whatever model of relations between the domestic and the international system is chosen, a State is bound under Article 26 of the Vienna Convention on the Law on Treaties to respect ratified international agreements and pursuant to Article 27 of the Vienna Convention it cannot invoke the provisions of its internal law as justification for its failure to perform a treaty, including the European Convention on Human Rights.’112 Secondly, the judgment of the Constitutional Court created uncertainty with respect to the hierarchy of sources of law.113 Article 15(4) of the Russian Constitution does not specify whether international treaties have primacy only over Russian federal law or also over the Constitution.114 It provides that ‘if an international treaty or agreement of the Russian Federation fixes other rules than those envisaged by law, the rules of the international agreement shall be applied’.115 However, as it was interpreted by the Russian Constitutional Court and implemented in the Russian legislature, the term ‘law’ here does not include the Constitution. Thus, if the provision of the ECHR contradicts the Russian Constitution, then the latter prevails.116 Until 2015, there was no such full-scale mechanism of constitutional primacy over the ECHR as it was developed by the Russian authorities.117
Although judgment No. 21-P/2015 was problematic from the domestic law point of view, however, it should not be assessed only from the negative point of view as an attempt of Russia to avoid compliance with its international obligations. Again, as in the Markin case, this judgment showed the Constitutional Court’s position that in case of a conflict between the ECtHR interpretation of the Convention and the Russian Constitution, priority should be
111 Resolution of the Constitutional Court of the Russian Federation No. 21-P of 14 July 2015, on the Matter of
Verifying the Constitutionality of Provisions of Article 1 of the Federal Law on Ratification of the Convention on Human Rights and Fundamental Freedoms.
112 Venice Commission Final opinion (n 7) 143.
113 Iryna Marchuk, Marina Aksenova, ‘The Tale of Yukos and of the Russian Constitutional Court’s Rebellion
against the European Court of Human Rights’ (AIC, 6 April 2017) <http://www.osservatorioaic.it/the-tale-of-yukos-and-of-the-russian-constitutional-court-s-rebellion-against-the-european-court-of-human-rights.html> 5 accessed 16 July 2018.
114 (n 113).
115 The Constitution of the Russian Federation (n 8), Article 15(4).
116 Anastasia Rogozina, ‘Constitutional Court to Decide on Enforceability of ECtHR Judgments in Russia’ (CIS
Arbitration Forum, 16 December 2015) <http://www.cisarbitration.com/2015/12/16/constitutional-court-to-decide-on-enforceability-of-ecthr-judgments-in-russia/> accessed 17 July 2018.
117 Lauri Malksoo, ‘Russia, Strasbourg, and the paradox of a human rights backlash’ in Lauri Malksoo,
given to the national Constitution. 118 It is argued that the Constitutional Court focuses not on the execution of the judgments of the ECtHR, but on the protection of the Constitution.119
Another step further in addressing fundamental questions of the relationship between Russian courts and the ECtHR was in 2016, when the Russian Constitutional Court for the first time used its power under the law adopted in 2015 to rule that the Anchugov and
Gladkov v. Russia judgment120, in which the Strasbourg Court found that the absolute and
indiscriminate ban on prisoner voting was in breach of the ECHR, cannot be implemented.121 The Constitutional Court stated that the execution of the ECtHR judgment would contradict the clear and explicit constitutional ban on prisoner voting enshrined in the Russian Constitution.122 Therefore, Russian courts are not obliged to comply with the judgment regarding issues that remain in conflict.123
The most recent example of the Russian Constitutional Court’s position towards ECtHR judgments was the judgment Nr. 1-P/2017124, which illustrated that Russia is not willing to implement the ECtHR’s judgment in which it obliged the state to pay 1,9 billion euros to Yukos Oil Company shareholders.125 In the 2017 case, the Constitutional Court held that it cannot enforce the ECtHR decision on compensation payment in the Yukos case, because it violates the Russian Constitution.126 It stated that the interpretation of the applicable taxation provisions was the ‘only possible constitutionally acceptable meaning’. Thus, the status of the provisions amounts to a level almost equal to the provisions of the Constitution. Russia claimed that the ECtHR’s decision on retroactive taxation was contrary to previous Constitutional Court’s decisions, which stated that retroactive taxation may be used against
118 Ivan Kleimenov, ‘Judgment of the Constitutional Court of the Russian Federation no 12-P/2016: Refusal to
execute judgments of ECHR or the search for compromise between Russian and international law?’ (QIL, 31 October 2016) <http://www.qil-qdi.org/judgment-constitutional-court-russian-federation-no-12-p2016-refusal-execute-judgments-echr-search-compromise-russian-international-law/#_ftnref5> accessed 07 June 2018.
119 ibid.
120 Anchugov and Gladkov v. Russia App nos 11157/04 and 15162/05 (ECtHR, 4 July 2013). 121 The Constitutional Court of the Russian Federation, Judgment of 19 April 2016, No. 12-P. 122 ibid.
123 A. Kh. Abashidze, M. V. Ilyashevich and A. M. Solntsev, ‘Anchugov & Gladkov v. Russia’ (2017) 111 AJIL
461.
124Judgment No. 1-P/2017 (n 99). Yukos claimed that the rights of the company were violated in Russian courts,
which led to its bankruptcy and liquidation. The ECtHR found that Russia violated Article 1 of Protocol 1.
125 OAO Neftyanaya Kompaniya Yukos v. Russia (n 100). Ivan Nechepurenko, ‘Russian Constitutional Court
Determines Moscow Not Bound to All Human Rights Court Rulings’ (The Moscow Times, 14 July 2015) <https://themoscowtimes.com/news/russian-constitutional-court-determines-moscow-not-bound-to-all-human-rights-court-rulings-48135> accessed 12 May 2018.
126 Maxim Timofeyev, ‘Money Makes the Court Go Round: The Russian Constitutional Court’s Yukos
Judgment’ (Verfassungsblog, 26 January 2017) <https://verfassungsblog.de/money-makes-the-court-go-round-the-russian-constitutional-courts-yukos-judgment/> accessed 13 May 2018; Judgment No. 1-P/2017 (n 99).
‘dishonest taxpayers’.127 The Constitutional Court held that the government’s actions were justified and that the ECtHR decision is contrary to the Russian constitutional principles of equality and fairness.128 As a result, the judgment and judicial reasoning of the Constitutional Court raised even more questions and discussions regarding the relationship between the Russian Constitutional Court and the ECtHR, which will be discussed in Chapter 3.
In the cases discussed above, German and Italian Constitutional Courts were the first ones that relied on the counter-limits doctrine, which states that the Strasbourg Court is allowed to interpret the Convention and has the final word as a matter of international law, but that as a matter of domestic law the constitution forms a limit. These cases in all four different states illustrate that the Constitutional and Supreme Courts used the counter-limits doctrine in order to fence-off the Convention, if necessary. The courts discussed the possibility of disobeying the case-law of the ECtHR in order to protect the fundamental constitutional principles of domestic law.129 However, it can be seen that states tried to protect the fundamental principles of the Constitution in different ways. For instance, the Italian Constitutional Court underlined that it will follow only ‘consolidated’ case-law of the Strasbourg Court. Similarly, the UK national courts national courts do not agree to follow the Strasbourg Court completely. Thus, Italian and the UK’s way of framing the counter-limits is much broader, because lower domestic courts could refuse to follow any judgment of the ECtHR. In contrast, the power of the Russian Constitutional Court is limited to disobedience with cases against Russia and it can only refuse to implement the cases against Russia.
127 Ivan Philippov, ‘Russian Constitutional court denies enforcement of ECHR decision on Yukos’ (CIS
Arbitration Forum, 25 January 2017) <http://www.cisarbitration.com/2017/01/25/russian-constitutional-court-denies-enforcement-of-echr-decision-on-yukos/> accessed 13 May 2018;
128 Timofeyev (n 126).
3. Comparative analysis
3.1. Three factors of success
As it was discussed in Chapter 2, one of the first cases in Europe where courts used Constitution as a limit were cases in Germany and Italy. This strategy of ‘reasonable resistance’130 means that domestic courts engage in detailed argumentation that consists of two elements. First of all, the court has to clearly identify the fundamental principle, which has to be protected by departing from international judgment.Secondly, in order to justify the supremacy of the principle, national courts have to prove that they can better find a balance between competing values and protect national fundamental principles, which have not been properly assessed during the international proceeding.131 Therefore, an important distinction should be made between the national court simply undermining the international rule of law and prioritizing national law and legitimate response to preserve the rule of law not only at the domestic level but also at the international level. 132
When analysing the case of the United Kingdom in the light of these two elements, it is seen that the UK Supreme Court in the Horncastle case clearly identified the fundamental principle, which has to be protected by departing from international judgment. It justified its position in an over 28,000 words long unanimous judgment by explaining the peculiarities of national law that have to be considered in the judgment of the ECtHR.133 The fact that the court had made such a lengthy decision in trying to explain its position that the Strasbourg court was wrong, it has shown that this was not merely a case of a domestic court disobeying the Strasbourg jurisprudence and resisting the authority of the Court.134
Furthermore, there is a third important element that allowed the UK Supreme Court to successfully cooperate with the ECtHR – judicial dialogue. The Supreme Court was clearly engaging into dialogue with the ECtHR on the basis of the Strasbourg jurisprudence. Thus, one of the factors of success in the UK case is also the fact that the Supreme Court invoked the Strasbourg case-law in order to make its point and analysed relevant decisions by the ECtHR.135 The Supreme Court explained that blindly applying the case-law of the ECtHR not always leads to the right outcome, when there is a misunderstanding of the domestic law.
130 Kleimenov (n 119) 527-528. 131 ibid.
132 Nollkaemper (n 16) 21.
133 Eirik Bjorge, Domestic Application of the ECHR: Courts as Faithful Trustees (OUP 2014) 238. 134 ibid. 242; Al-Khawaja and Tahery v UK (n 85) 147.
Therefore, the important factor is that dialogue is built on the Strasbourg Court’s context, vocabulary and case-law.
The importance of dialogue was recently stressed also by the ECtHR. The President of the Strasbourg Court Guido Raimondi underlined the relevance of the Paposhvili v.
Belgium136 and N. v. the United Kingdom137 cases, which illustrates that the ECtHR takes into account different views and opinions on the Court’s law and it may depart from its case-law, when it would be more favourable for the applicant and guarantees better protection of human rights.138 The Strasbourg Court does not restrict national courts to give their own interpretation to the ECHR. The ECtHR even regards that well-reasoned objections and properly formulated critique to certain ECtHR interpretations are important and valuable. Furthermore, when states such as the United Kingdom engage into active and express dialogue with the Strasbourg Court and give an easy access to its case-law, it significantly influences the development of the ECtHR’s jurisprudence.139 Therefore, it could be considered that national courts sometimes have an obligation to elaborate on some points of national law and help the ECtHR to achieve a better understanding. However, it should not be forgotten that the room for manoeuvre is limited and it has to involve some truly fundamental principle of domestic law for the courts not to follow the Strasbourg jurisprudence.
All in all, it could be considered that the essential factors that influence the successful dialogue between the domestic supreme courts and the ECtHR are: the presence of fundamental principle that has to be protected; well-reasoned justification; and engaging into an active judicial dialogue based on the relevant case-law of the ECtHR.
3.2. Russian practice in relation to the three factors of success
The main provision in all of the cases discussed remains Article 46(1) of the ECHR, which provides that state parties have an obligation to execute the judgements of the Strasbourg Court. Russia is not an exception and it has to abide by the decisions of the ECtHR. We could see that at the beginning the Russian Constitutional Court found other possibilities how to solve the conflict between the Constitution and the ECHR. By expressing its view, the Court
136 Paposhvili v. Belgium App no 41738/10 (ECtHR, 13 December 2016). 137 N. v. the United Kingdom App no 26565/05 (ECtHR, 27 May 2008).
138 European Court of Human Rights, ‘Annual Report 2017’ (CoE, 2018)
<https://www.echr.coe.int/Documents/Annual_report_2017_ENG.pdf> accessed 17 May 2018.
139 Janneke Gerards, ‘The European Court of Human Rights and the national courts: giving shape to the notion
of 'shared responsibility’ in Janneke Gerards, Joseph Fleuren (eds) in Implementation of the ECHR and of the
has joined a number of other top European national courts – most notably those of Germany, Italy, and the United Kingdom – which have recently been trying to define the extent of the permissible impact of ECtHR jurisprudence on their domestic legal orders.140 However, according to Article 46(1) of the ECHR, when the Constitutional Court decides that there is a conflict between the Constitution and the ECHR and the only way to solve it is to refuse to execute the ECtHR judgment, it automatically places the state in the shoes of a violator of its international obligation.141 Therefore, after the judgments of the Russian Constitutional Court, there were many opinions that it is ‘unacceptable’ for the Russian Constitutional Court to reach a different conclusion and challenge binding judgements of the European Court. 142
The practice of the Russian Constitutional Court was seen as controversial and different from the UK’s judicial dialogue. Some argue that the Russian Constitutional Court went further than any other court in Europe in criticising the judgments of the ECtHR.143 For instance, Lauri Mälksoo argues that ‘although the Russian Court takes clues from previous cases of other Council of Europe member states, it brings the issue much further’ and ‘that the Russian Constitutional Court has created a full-scale constitutional doctrine and mechanism for rejecting the enforcement of judgments of the Strasbourg Court that it would interpret as constitutionally incompatible in the Russian context’.144
Thus, as Russia’s case is assessed totally different by the scholars and legal professionals, the practice of the Russian Constitutional Court will be discussed in the light of the three criteria that allowed the UK Supreme Court engage into successful dialogue with the ECtHR.
3.2.1. Fundamental principle
The Russian Constitutional Court similarly to the UK’s Supreme Court, which underlined that the departure from the Strasbourg case-law is possible when it is inconsistent with some fundamental substantive or procedural aspect of domestic law, held that rejecting the implementation of the Strasbourg Court’s ruling ‘may take place in exceptional cases and in
140 Grigory Vaypan, ‘Acquiescence Affirmed, Its Limits Left Undefined: Russian Constitutional Court Has
Ruled on Its Relationship with European Court of Human Rights’, (CILJ, 26 December 2013) <http://cilj.co.uk/2013/12/26/acquiescence-affirmed/> accessed 13 June 2018.
141 ibid.
142 Venice Commission, ‘Interim Opinion on the amendments to the Federal Constitutional Law on the
Constitutional Court of the Russian Federation adopted by the Venice Commission at its 106th Plenary Session’ (15 March 2016).
143 Dzehtsiarou (n 67).
144 Lauri Mälksoo, ‘Russia’s Constitutional Court Defies the European Court of Human Rights: Constitutional
the presence of sufficiently weighty reasons’.145 However, as the case-law shows, the Russian Constitutional Court does not follow this rule, it is not always clear why some of the cases are so exceptional146 and whether there is a fundamental constitutional principle that has to be protected. For instance, the Anchugov and Gladkov case concerned a ban on prisoner voting, which is entrenched in the Russian Constitution. In contrast, in the Yukos case the violations found by the ECtHR had nothing to do with the constitutional provisions.147 Furthermore, Russian Constitutional Court elevated the status of the applicable provisions of the Russian Tax Code and the Enforcement Proceedings Act to a level almost equal to the provisions of the Constitution by means of invoking overly broad and abstract principles of equality and fairness in the matters of taxation.148 The Constitutional Court held that execution of the ECtHR judgment on just satisfaction is not possible, because the shareholders of the company ‘built illegal schemes of evasion of taxation’149 and, thus, paying them from the state budget would be contrary to the constitutional principles of equality and fairness.150
It is argued that the case concerned the violation of the right to property, which is certainly not the most important of both the Convention and Constitutional law. 151 Also, even a very significant amount of compensation cannot make the case so ‘exceptional’.152 Venice Commission in its final opinion on the constitutional amendments on the Russian Constitutional Court concluded that ‘individual measures of execution contained in judgments of the European Court of Human Rights, such as payment of just satisfication, may not be the object of an assessment of constitutionality’.153 Thus, the right to property or principles of equality and fairness in taxation law are not considered to have a fundamental status.
145 Michał Górski, ‘Quo Vadis, Russia? On the country’s recent approach towards implementing judgments of
the European Court of Human Rights’ (2017) 23 CLR 139, 147; Judgment No. 1-P/2017 (n 99); Judgment No. 21-P/2015.
146 ibid.
147 Timofeyev (n 126).
148 Iryna Marchuk, ‘Flexing Muscles (Yet Again): The Russian Constitutional Court’s Defiance of the Authority
of the ECtHR in the Yukos Case’ (EJIL, 13 February 2017) <https://www.ejiltalk.org/flexing-muscles-yet-again-the-russian-constitutional-courts-defiance-of-the-authority-of-the-ecthr-in-the-yukos-case/> accessed 14 May 2018. 149 Judgment No. 1-P/2017 (n 99). 150 Timofeyev (n 126). 151 Górski (n 145). 152 ibid.
