“The Bill for Torshin.doc”

Lev Levinson, 30/06/11
Source: HRO.org
· European Court of Human Rights  · The Courts  · Moscow City & Moscow Region

Lev Levinson: Legislative amendments proposed by Senator Torshin would empower the Constitutional Court to quash judgments of the European Court of Human Rights where they conflict with earlier rulings by the Constitutional Court. In addition, the proposed bill would ban Russian citizens from applying to the European Court of Human Rights before there has been a final decision by the Supreme Court or the Supreme Arbitration Court in their case.

There is no need to ask why the author of the bill, a lawyer, has entered into an open conflict with the law. If Torshin is guilty of anything, it is only in that he has done what he was told to do by his party in a disciplined manner. This is because, apparently, he did not write the bill himself. If you open the bill on the website of the State Duma you will see a funny thing. The file with the text of the bill is there called “The Bill for Torshin.doc.” It is difficult to assume that a file with this name originated on the computer of a senator or a member of their staff.

It is well known that the most dubious Kremlin legislative initiatives are made in the name of parliamentarians. Just in case. So if anything goes wrong, they can always say, “It wasn’t us.”

As is well known, the European Court of Human Rights with regard to Russia recognizes domestic remedies as exhausted after proceedings in the appellate court, as it does not consider the existing provisions for judicial review in the Russian Federation accessible or effective. If the Strasbourg court were to be guided by the criterion of exhaustion proposed by Torshin, it would mean applicants having to go through a long spiral staircase of judicial review, the peculiarity of which is that it may not be possible to ever get to a "final" judgment from the Supreme Court.

The reason for the introduction of this bill was the judgment of the European Court of Human Rights in the case Konstantin Markin v Russia of 7 October, 2010. Konstantin Markin, a Russian officer and single father, appealed against the refusal of his superiors and the courts to grant him leave to care for his child on the grounds that the law allows such leave only to women military service personnel.

The Constitutional Court, to which Konstantin Markin appealed, found no reason to check the constitutionality of the law in question. The European Court of Human Rights found that not only was the applicant a victim of gender discrimination in conjunction with the violation of his right to family life, but also criticized the position of the Constitutional Court on this matter.

In response, the indignant chair of the Constitutional Court, Valery Zorkin, did not mince his words but directly questioned the role of the European Court of Human Rights in the Russian judicial hierarchy.

Indeed - and here Valery Zorkin is right - Article 15 of the Constitution stipulates the priority of international treaties over laws, but not over the Constitution of the Russian Federation, which has supreme legal authority. But the relationship between these legal elements is less clear. In establishing the competence of the Constitutional Court, Article 125 of the Constitution gives the Court the authority to resolve cases on the constitutionality of “international treaties of the Russian Federation that have yet to enter into force.” After they have entered into force, the power over them of the Constitutional Court ceases. This is the case with the European Convention which has long since become part of our legal system. By ratifying the Convention, Russia recognized the jurisdiction of the European Court of Human Rights.

But no matter how the Constitution and international treaties relate to each other, the judgments of the Constitutional Court are not equal in legal force to the Constitution. The fact that the latter lays on the Constitutional Court the function of constitutional review does not mean that the Constitutional Court has the right to put itself above the Constitution.

What are the consequences? It would be most strange to expect the European Court of Human Rights to align its position on the question of admissibility of applications by Russian citizens with Russian law. Strasbourg will not be harmed by Torshin’s amendments. But what will await those applicants who use their constitutional right to appeal to intergovernmental bodies without waiting for the Supreme Court to give a final decision? Violators of the law must somehow be punished. So when the level of madness reaches such a point that this bill becomes law, the only question remaining will be as to which members of the United Russia party will be given the job of introducing amendments to the Criminal Code.
Rights in Russia,
6 Jul 2011, 14:28