Anchugov and Gladkov is not Enforceable: the Russian Constitutional Court Opines in its First ECtHR Implementation Case

[Marina Aksenova is a Post-doc at the Centre of Excellence for International Courts, Faculty of Law, University of Copenhagen. You can reach her at: Marina.aksenova@jur.ku.dk.]

On 19 April 2016, the Constitutional Court of Russia (CC) issued its pilot decision testing newly acquired powers to refuse the implementation of the rulings of the European Court of Human Rights (ECtHR) contradicting Russia’s Constitution. The case under review of the CC was Anchugov and Gladkov v Russia. In this case, the ECtHR previously found that automatic and indiscriminate ban on Russian prisoners’ voting rights was disproportionate and thus in violation of Article 3 of Protocol No. 1 (right to free elections) of the European Convention on Human Rights (ECHR). Ever since it was issued in 2013, the Russian authorities viewed this ruling as problematic because it directly contradicts Article 32(3) of the Russian Constitution, which reads as follows:

Deprived of the right to elect and be elected shall be citizens recognized by court as legally unfit, as well as citizens kept in places of confinement by a court sentence.

The CC has been enjoying powers to refuse the implementation of contested decisions of the ECtHR for only nine month, and, more precisely, since 14 July 2015 when it issued ground breaking decision to reaffirm the primacy of the Russian Constitution over the conflicting rulings of the ECtHR and any other international bodies tasked with human rights protection (some aspects of this decision are discussed here and in the second half of this post). On 14 December 2015, the legislature, in line with the position of the CC, amended the law regulating the operation of the Russian Constitutional Court, granting the President and the Government the right to appeal to the Court in instances when they suspect that executing the ruling of the ECtHR may contradict the Constitution. Following the introduction of this new internal review mechanism, the Ministry of Justice swiftly filed an appeal to the CC asking it to rule on the possibility of implementing the ECtHR judgment in Anchugov and Gladkov.

The CC held on 19 April 2016 that the ECtHR judgment in Anchugov and Gladkov could not be executed. The CC adopted, however, a diplomatic approach by not ruling out the introduction of future penalties involving non-custodial sentences that limit the freedom but do not impede on the voting rights. The CC nonetheless insisted on its previous interpretation of Article 32(3) as sufficiently discriminate to satisfy the requirements Article 3 of Protocol No. 1. The Court further stressed European pluralism in what concerns organisation of the electoral processes in different members states as well as inconsistent position of the ECtHR itself in matters concerning voting rights (the CC contrasted Hirst v UK (2005) and Scoppola v Italy (2012) judgments, pointing to a certain change of heart by the Strasbourg court).

The CC distinguished general measures and measures that benefit the applicant in making three important pronouncements:

• Anchugov and Gladkov cannot be implemented in what concerns general measures involving repealing or changing the imperative provision of Article 32(3) of the Constitution given its supremacy within Russian legal system. The CC found it particularly troubling that the provision in question can only be changed by virtue of adopting a new Constitution;
• Anchugov and Gladkov can be implemented in what concerns general measures ensuring fairness, differentiation and proportionality of the restrictions on voting rights. Here the CC adopted a rather questionable approach arguing that only a custodial sentence leads to the disenfranchisement of the offender concerned, which ensures sufficient differentiation because most of the first-time offenders charged with minor crimes do not get imprisoned, ergo their voting rights are intact. The ECtHR has however already dismissed this argument in Anchugov and Gladkov (para. 106) pointing to the lack of evidence that courts take into account impending disenfranchisement when deciding on the type of sanction to be imposed on the convicted person. Possibly sensing some weakness in this position, the CC made an additional promise for the future – the legislator may optimise Russian penitentiary system so as to ensure the existence of punishments limiting freedom but not involving imprisonment, thus guaranteeing voting rights to the convicted persons;
• Finally, Anchugov and Gladkov cannot be executed in what pertains measures benefitting individual applicants because the applicants were convicted for serious offences and sentenced to fifteen years of imprisonment, automatically leading to their disenfranchisement. Moreover, restitutio integrum is simply impossible in this case for the elections that the applicants wished to participate in took place between 2000 and 2008.

14 July 2015 CC Ruling

The CC Anchugov and Gladkov ruling was made technically possible due to the adoption of the 14 July 2015 ruling by the CC. The latter was motivated by the plea of 93 parliamentary deputies requesting the Court to annul as unconstitutional provisions of federal laws stipulating the obligation to comply with the judgements of the ECtHR. The discontent was partially caused by the award in the Yukos case, whereby the ECtHR ordered Russia to pay the shareholders of Yukos as they had stood at the time of the company’s liquidation 1,866,104,634 euros in respect of pecuniary damage. On 14 July 2015, the Constitutional Court adopted a middle ground approach: it rejected the deputies’ plea, while simultaneously allowing for the creation of a legal mechanism impeding the enforcement of ECtHR judgments that contradict the Russian Constitution. This ruling denoted a move towards more ‘autonomous’ interpretation of Russian law and away from the European ‘consensus’ on human rights issues, as reflected by the ECtHR and other internationally recognized bodies.

The reasoning, whereby the CC came to these conclusions, is quite interesting and deserves a few remarks here for it informed the motivational part of Anchugov and Gladkov and is likely to resurface in the future rulings of the CC.

Some arguments of the Constitutional Court could be expected, while the other represented novel interpretations of international law. The more predictable arguments included recognizing the subsidiary nature of the ECHR for the protection of rights and freedoms in Russia and the importance of the doctrine of the margin of appreciation. The constitutional judges pointed to Article 46 of the ECHR that allows the respondent state some flexibility in choosing the method of enforcement of the ECtHR rulings, which, by virtue of implementation, become part of the legal system of the Russian Federation.

The Constitutional Court of Russia also turned for support to several cases decided by the highest courts in Germany, Italy, Austria and the UK, in which the latter were said to have upheld the principle of priority of national constitutions over the conflicting rulings of the ECtHR. The analogy with other states may be somewhat misleading because, as for instance, in the case of Germany, the national Constitutional Court did not simply give priority to its own constitutional order, but rather discussed the ways in which international obligations may be complied with (Görgülü v. Germany, 2005).

More controversial arguments pertained to the autonomous interpretation of the Vienna Convention on the Law of Treaties (VCLT) and the subtleties of the internal constitutional legal order. Sovereignty was held by the CC as one of the basic principles of the Constitution ensuring supremacy and independence of state authority. The CC’s argument went as follows: Russia, as a player on international arena, joins international agreements and participates in the work of international organizations to the extent that it does not contradict its sovereignty (the same line of reasoning was adopted in Anchugov v Gladkov).

The Constitutional Court of Russia linked the idea of constitutional sovereignty to the principles of interpretation enshrined in Article 31(1) VCLT. According to this provision, “a treaty should be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” The judges concluded that an international agreement is binding on the State parties only if it is interpreted according to the rules of 31(1) VCLT. If the ECtHR decides to deviate from these rules and attribute to the ECHR a meaning contradicting its the object and purpose or violating peremptory norms of international law, the State party may refuse to execute the ruling in this specific instance. Again, the same argumentation resurfaced in Anchugov v Gladkov.

The Constitutional Court went as a far as recognizing sovereign equality as a rule of jus cogens. This is at odds with the general reading of jus cogens, or peremptory norms, as the limitation on state sovereignty and a guarantee against the unabridged exercise of state power.

The Constitutional Court of Russia also argued that Article 27 VCLT prohibiting the party from invoking its internal law to avoid its international commitments, contains an exception stipulated in Article 46 VCLT, which invalidates consent given in manifest violation of an internal law of fundamental importance. The CC considered the Constitution to be exactly that rule serving as a justification to eschew Russia’s treaty obligations. The argument continued as follows: Russia cannot join treaties that contradict its Constitution. It is possible, however, that at the time of the signing of the ECHR, its provisions were compatible with Russia’s constitutional order. Later on, certain specific interpretations by the ECtHR became contradictory to its constitutional order – something Russia could not have envisaged at the time of joining the Convention. At the same time, it is presumed that the ECtHR knows when its rulings are at odds with the constitutional orders of the respondent states. This practice meets the requirements of Article 46 VCLT with respect to manifest violation. On these grounds, it is possible to refuse to execute contradictory judgments of the ECtHR.

There are two major objections to this argument. First, it appears more plausible that Article 46 VCLT relates to the procedural provisions of internal law regulating the capacity to conclude treaties rather than the content of the substantive law. Moreover, it seems to apply to the conduct of states rather than international courts. Secondly, Russia’s Constitution incorporates international law in its legal system and grants international treaties and internationally recognized principles and norms of international law priority over domestic law in cases of conflict (Article 15(4) of the Constitution). It must be noted that this provision does not clarify whether ‘domestic law’ encompasses the Constitution itself, making it subordinate to international law.

The CC in Anchugov and Gladkov answered this question in the negative, placing the Constitution above both domestic and international law. This is in contrast with CC’s previous rulings (eg. Ruling of the CC rejecting the request of the judge of Moscow District Court N.V. Grigoryevoi, 3 July 1997, No. 87-O ) and the position of many commentators arguing that the Constitution guarantees the basic rights and liberties in conformity with the commonly recognized principles and norms of international law, and grants everyone the right to turn to interstate organs concerned with the protection of human rights and liberties.

What is next?

In Anchugov and Gladkov, the CC seized of the opportunity created by its 14 July 2015 ruling and refused the implementation of the ECtHR ruling contradicting Russian Constitution, thereby upholding its supremacy. It should be noted, however, that the CC did not approach its new powers lightly – the decision is hefty 43 pages and the CC judges tried to point to some form of compromise alluding to potential future sanctions not involving disenfranchisement, thus, arguably, acknowledging the sensitivity of the matter. Anchugov and Gladkov shows that the CC, despite having ruled on the impossibility of executing the ECtHR decision, did so in a rather cautious way. This could be attributed to the novelty of this exercise or the desire of the CC to avoid direct and open confrontation with the ECtHR.