Experts – on the prospects for establishing the supremacy of Russia’s national laws over its obligations under international treaties
The proposal voiced during the last message to the Federal Assembly by Russian President Vladimir Putin, which essentially boils down to establishing in the country’s Constitution the primacy of Russian laws over international treaties, caused a wide wave of discussions in the country.
So, in “Open Russia” they are confident that the Constitution should not be rewritten “for a specific person or the current political situation,” and are ready to propose their own draft constitutional reform. “Yesterday we heard from its“ guarantor ”a whole package of proposals, which is de facto aimed at keeping power in the hands of Putin,” reads a press release circulated by the public organization. “Nevertheless, the people, as the only source of power, were not aware of the plans of the late president”.
Open Russia called on all political forces, the scientific and legal communities to take part in the development of the draft basic law of the country with the subsequent introduction of an alternative proposal, and made a proposal to hold a round table on this topic at the end of January.
In turn, the lawyer of the Memorial program “Doing business in the ECHR” Tatiana Glushkova recalls that the principle of the primacy of the norms of international law and international treaties signed by the Russian Federation is enshrined in Article 15 of the Constitution. In her opinion, this article can only be changed by adopting a new Constitution, the development of the draft of which is within the competence of the Constitutional Assembly..
“The procedure for the formation of the Constitutional Assembly is not determined by the current legislation – the corresponding federal constitutional law has not yet been adopted. Thus, at the moment it is technically impossible to rewrite Article 15 of the Constitution, “she states on the Memorial website..
At the same time, the lawyer did not rule out that, taking into account modern political realities in Russia, on the initiative of Putin, the legislation will be changed in record time, and the new Constitution may become a fact.
Professor of the Department of Constitutional and Municipal Law, Faculty of Law, Moscow State University. M.V. Lomonosov Elena Lukyanova also does not yet see the technical and practical opportunity for such a radical revision of the Constitution, but admits that work in the direction proposed by Putin will go on as usual.
“How and what they will come up with now, we’ll see,” she added in a comment for the Russian service of the Voice of America. – Implementation of Putin’s proposal will make it possible not to fulfill Russia’s obligations under international agreements. What mechanism is possible here is unclear. Nothing else is clear from the President’s message. They seem to be not going to change Article 15 “.
At the same time, Elena Lukyanova found it difficult to say to what extent the potential changes to the Constitution will create the preconditions for the RF’s withdrawal from the Council of Europe and PACE: “So far I do not see such grounds, but everything is possible. To withdraw from the Council of Europe, you just need to denounce the Convention (on the Protection of Human Rights), then why should there be no reason. And why not, since now they are seriously talking about the priority of the Constitution? ”
At least, this is a direct way to create a mechanism for non-execution of individual decisions of the ECHR, the lawyer clarified..
“It seems that the task of creating such a mechanism has been formulated. Although, in general, such a possibility has already been laid down in the law on the Constitutional Court. The Ministry of Justice may in some cases appeal to the Constitutional Court (in order to ignore the decisions of the ECHR), ”concluded Elena Lukyanova.
Note that, since 2015, the Constitutional Court of the Russian Federation has been empowered to recognize as non-binding decisions of interstate bodies for the protection of human rights and freedoms (both the ECHR and, for example, the UN Human Rights Committee). Apart from Russia, none of the 47 member states of the Council of Europe allows anything of the kind. True, so far the Constitutional Court has recognized as unenforceable only two judgments of the ECHR (in particular, in the first case of YUKOS).
Director of the Institute for Human Rights, member of the Presidential Council for the Promotion of Civil Society and Human Rights Valentin Gefter assumes that the President, in the context of Article 15, wants to clarify in favor of the Constitution over international agreements, primarily over the European Convention and the ECtHR decision. In his opinion, this does not bode well for the citizens of Russia..
“Because, generally speaking, the Constitution itself does not strongly contradict international standards (in the field of law), in particular, European ones,” he explained in a commentary for the Russian service of the Voice of America. – I would even say that in the chapter that deals with rights and freedoms, the provisions practically coincide. But, of course, this will give a great opportunity for the Constitutional Court and other judicial bodies of Russia to choose decisions in favor of domestic legislation in relation to international one. And here, of course, not too pleasant collisions may arise “.
It seems to the director of the Institute for Human Rights that in the overwhelming majority of cases this will not affect the complaints of Russians to the ECHR..
“However, we must not only listen to the words, but wait until a specific amendment or clarification is proposed – I don’t know in what form it will be submitted – regarding the constitutional norm on the primacy of domestic law over international law,” he said. – Then you will need to carefully look at the wording. Some of my colleagues, listening to the President’s message, understood this as almost a tendency for all the norms of domestic legislation to prevail over international law. ” In a word, we will wait and see, concluded Valentin Gefter.
American expert commentary
Russian voters appear to approve constitutional changes that could extend Putin’s reign
American experts have already called the proposal of Russian President Vladimir Putin to carry out a constitutional reform “the formalization of the mechanism of their indefinite stay in power.” Here is the opinion of a political scientist, writer and publicist who has worked in Moscow for many years, David Sutter (David Satter):
“I think it’s obvious that Putin is trying to create a new mechanism for his indefinite stay in power in Russia. But so as not to create the impression that he is an absolute despotic dictator. This Russian Constitution was originally created as a tool for empowering one person with power that would not be threatened by anything. What we see now is not a democratic process of separation of powers. In 1993, power was taken away from parliament by force. Now an effective dictatorship has taken shape in Russia, and it can transfer some of its powers to parliament, because parliament is now under complete control. And therefore, a system of power is being created that looks like a legitimate one, but, in fact, boils down to the fact that Russia is governed by one person, as in 1993 ”.
Commenting on Putin’s initiative to endow Russian laws with primacy over international law, David Sutter said:
“As for the proposed amendment on the priority of Russian law over international law, this will definitely worsen the human rights situation in Russia, because it will deprive Russians of the last hope for justice – the decisions of the European Court of Human Rights, and will increase the lawlessness that reigns in Russia today. I think that if Russia ceases to comply with the decisions of the ECHR, then it will actually not be able to remain a member of the Council of Europe, although it recently managed to regain the right to vote in the Council of Europe, despite the annexation of Crimea and military intervention in Donbass ”.
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