a network of constitutionalists from countries throughout the world
by Dr William Partlett, Senior Lecturer, Melbourne Law School and Dr Tatiana Khramova, Senior Associate, Institute of Law and Public Policy (Moscow, Russia).
On 19 April 2016, the Russian Constitutional Court (RCC) exercised its newfound power to declare decisions of international human rights bodies “impossible to implement.” After a petition by the Ministry of Justice, the RCC declared a 2013 decision of the European Court of Human Rights on prisoner voting rights (Anchugov and Gladkov v Russia) impossible to implement in Russia because it contradicted a clear provision of the Russian Constitution. This decision has generated a significant amount of criticism. For instance, Human Rights Watch has warned that the case is an example of “selective justice” that “risks gutting the European system of human rights protection in Russia.” Are things as bad as that? The answer hinges in part on whether this case suggests a fundamental shift in the RCC’s approach to constitutional interpretation.
The April 2016 RCC judgment is the first and so far the only case where the RCC has been petitioned by the Ministry of Justice to rule on the “implementation” of decisions of international bodies for the protection of human rights. Although this power has been condemned by the international legal community and strongly criticised by the Venice Commission (Interim Opinion No. 832/2015, 15 March 2016), these changes were the logical follow-up to a RCC judgment of 14 July 2015.
This July 2015 judgment was remarkable in many ways. First, the RCC took the position that the European ConventionEuropean Convention should be enforced in Russia only if it did not conflict with the Russian Constitution. Second, the RCC argued that this position was in line with the standpoint of other European states objecting to activism of the ECtHR, and therefore should be perceived as “a contribution to building-up well-balanced ECtHR case law”. To prove its point, the RCC cited the decisions of foreign courts for the first time in more than 20 years of its operation.
Anchugov and Gladkov case
The Anchugov and Gladkov case — decided almost 3 years ago — was specifically chosen by the Ministry of Justice as the first test case for this power. It was likely chosen because it is a clear example where evolving ECtHR case law — something many Russian judges are suspicious of —conflicts with the language of the 1993 Russian Constitution. On one side stands ECtHR case law that has found any general, automatic, or indiscriminate disenfranchisement of prisoners in violation of Article 3 of Protocol 1 to the European Convention. On the other side stands Russia’s blanket and indiscriminate ban on prisoner voting, stemming from Article 32(3) of the Constitution, which states that “citizens kept in places of confinement pursuant to a sentence imposed by a court shall not have the right to vote or to stand for election.”
In 2013, the inevitable happened: the ECtHR declared Russia’s blanket ban on prisoner voting to violate the Convention. The ECtHR encouraged Russia to pursue “all possible means” for carrying out this opinion, including interpretation of the constitutional provision by the RCC or other “political processes”.
Three years later, the RCC reviewed whether this 2013 ECtHR decision conflicted with the Russian Constitution. The Court explained—as it had in July 2015—that the proper interaction between the Convention and the Russian legal system could not exist in a climate of “subordination” but instead required constructive dialogue and respect for each state’s constitutional identity. The Court said it would try to ensure the harmonization of these two spheres through compromise but also held that the parameters of this compromise must be determined on the basis of the Russian Constitution. These general observations led the Court to a very specific conclusion: in exceptional cases when the ECtHR’s interpretation of the European Convention contradicts fundamental principles and norms of the Russian Constitution, the RCC may empower national authorities to depart from international obligations.
And that is exactly what happened in the Anchugov case. The Court’s decision focused on the text of Article 32(3) and, without any reference to evolving international norms, found that the “literal meaning” of the constitutional text did not allow any room for compromise with the ECtHR’s interpretation of the Convention. Underlying this textual approach to interpretation is the sovereigntist idea that the people speak through the “literal meaning” of the Russian Constitution and this popular “voice” must trump evolving international law. Consequently, this decision was “impossible to implement” for Mr Anchugov and Mr Gladkov. Furthermore, as a general matter, the RCC also declared the ECtHR judgment unenforceable. It did, however, show some willingness to compromise or to engage in a dialogue with the ECtHR. The RCC advised the Parliament to consider the possibility of altering the provisions of criminal legislation and removing “settlement colonies” from the list of confinement institutions, providing those in places of confinement that least resemble imprisonment a right to vote.
In dissent, two Justices urged a less rigid, textual approach to constitutional interpretation. Justice Kazantsev argued that Article 32(3) of the Russian Constitution should be interpreted as the highest but not the lowest degree to which prisoner voting rights may be restricted. He argued that the Parliament had an obligation to adopt legislation enfranchising some categories of prisoners. Justice Yaroslavtsev argued that there was a way to find the ECtHR Anchugov judgment enforceable by means of defining the term “imprisonment” in ordinary legislation. He also cited a well-regarded German case (Görgülü) to invite the RCC to use the Convention as a guideline for understanding the national Constitution.
How should we understand the April 2016 decision? Will it open the floodgates to a number of decisions cancelling judgments of international human rights bodies in Russia and undermine the European system of rights protection in Russia? The answer hinges in part on how closely the RCC adheres in the future to the rigid position that the words of the Russian Constitution should be interpreted literally and independently of international law? Might this case suggest a sovereigntist turn in all constitutional interpretation? Such a formalistic textual approach to constitutional interpretation has actually been relatively rare in RCC decisions. In fact, the RCC generally has taken a much more flexible, purposive approach to constitutional interpretation, looking to how the constitutional provision fits into the values and principles established by the broader structure of the Constitution. We have seen this flexible approach used to read Russian constitutional text in line with international obligations. For instance, in a 2009 case extending a ban on the death penalty, the RCC interpreted the Russian constitutional right to life in light of a Council of Europe standard to eliminate death penalty. Since the executabiliity decision, the Chairman of the RCC has stated that cases like Anchugov would remain exceptional and the presumption of legal harmony between Russian Constitution and the Convention would prevail. Thus, we are left with the key question: Does the Anchugov case suggest a new, more rigid approach to constitutional interpretation in the RCC? Or will it remain the exception?