ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

35 CONSTITUTIONALISM IN RUSSIA:
COMPARATIVE PERSPECTIVES
This panel will explore issues that are much discussed
recently such as international law’s possibly changing
place in the Russian constitutional system, the specific
understanding of human rights, the recent legislative
amendments that enable the Constitutional Court to
check the constitutionality of judgments of the ECtHR
in Russia, and constitutionalism in Russia’s federal
subjects. A starting point of the panel is the insight
that considering the country’s weight and uniquely
troubled history of constitutionalism, Russia could be
much more visible in academic projects of comparative
constitutional and international law.
Participants
Name of Chair
Room
Lauri Mälksoo
Jane Henderson
Bill Bowring
Vladislav Starzhenetskiy
Lauri Mälksoo
UL9 E14
Lauri Mälksoo: International Law in the Russian
Constitutional Hierarchy: A Comparative Perspective
The place of international law in the Russian constitutional
system is currently much debated. Politicians
have made suggestions to amend Article 15 paragraph
4 of the Russian Constitution of 1993 that recognizes
the supremacy of international treaties vis-à-vis the
Russian law (except for the Constitution itself). On 14
July 2015, the Russian CC decided that it might in the
future check the constitutionality of judgments of the
ECtHR made vis-à-vis Russia. This paper will look at
the problem of international law’s place in the Russian
Constitution both from historical and comparative
viewpoints. In the past, influential Soviet jurists like
Vyshinksy claimed that Soviet law always superseded
international law. With the democratic constitution of
1993, Russia attempted a change and became more
‘international law friendly’. However, this paper argues
that the pendulum is currently swinging back because
in Russia, international law is increasingly seen as foreign,
especially Western law.
Jane Henderson: Comparative Treatment of
Human Rights in Republican Constitutions/
Regional Charters
Much attention is rightly given to the Constitutional
Court RF’s role in interpreting and applying the
1993 Constitution, and in particular, its impact on the
realization of human rights in Russia. However, in 17
out of the 85 subjects of the RF, there are bodies of
constitutional justice applying the constitution (if a
republic) or charter (if one of the other types of subject
RF). Currently, 14 republics have a constitutional court,
and charter courts exist in two regions and one city
of federal significance. In two other regions attempts
to maintain or establish a charter court have been
thwarted by the regional governor. This paper examines
the activity of some of these courts, and seeks to
show that, whilst having a comparatively limited role,
they help bring the realization of rights to the population
within their area. In the author’s view, the fact that
in some instances there is resistance to the existence
of such a court emphasizes rather than diminishes
their importance.
Bill Bowring: The Interrelationship between
the European Court of Human Rights and the
Russian Constitutional Court: How Unique is it?
The Resolution of the Constitutional Court of 14
July 2015 laid the basis for the Law of December 2015,
amending the Federal Law on the CC. This gave the
CC, on application by a government body, the power to
declare that implementation of a judgment of the European
Court of Human Rights (ECtHR) would be “impossible”.
This was criticized by the Venice Commission
of the Council of Europe (CoE) on 11 March 2015. On 19
April 2016 the CC gave judgment on the implementation
of the ECtHR ruling in the case of Anchugov and
Gladkov v. Russia on the rights of prisoners to vote.
The Secretary General of the CoE, Thorbjørn Jagland,
commented that “Today’s judgment… suggests that
there is a way to resolve the issue through a change of
legislation which would alleviate the existing restrictions
on the right to vote.” Is his optimism justified?
Many commentators think not. While the UK’s refusal
to obey Hirst v UK was a political challenge, does the
CC in Anchugov pose more existential threat?
Vladislav Starzhenetskiy: Human Rights as
Legal Transplants: Russian Constitutional Court,
ECtHR and Socialist Legal Tradition
In 1998, Russia ratified European Convention on
Human Rights (ECHR) and subjected itself to jurisdiction
of the European Court of Human Rights (ECtHR).
However, rather quickly it became evident that human
rights and ECHR norms represented something conceptually
alien for the Russian legal system and they
had to face rejection, constant resistance, incomprehension
from the Russian judges, law-enforcement
agencies, legal academics and general public, they
simply did not function the way they were supposed to
and may be regarded as “legal transplants” for the Russian
legal system. The distinct features of the Socialist
legal tradition (ultra-formalism, domination of public
(state) interest, narrow scope of the most human rights
terms), to which Russia belongs to, made it particularly
difficult and challenging to apply and enforce human
rights norms. In this regard, the Russian Constitutional
Court has played and is still playing crucial role in assimilation
of human rights in Russia.
Concurring panels 67