Venice Commission of the Council of Europe adopts opinion on the Russian constitutional amendments related to the execution of European Court’s decisions in Russia

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Réf. DC 089(2020)

Venice Commission adopts opinion on the Russian constitutional amendments related to the execution of European Court’s decisions in Russia.

Strasbourg, 18.06.2020 – The Council of Europe’s body of constitutional legal experts, the Venice Commission, has published an opinion adopted today by written procedure on the draft amendments to the Russian Constitution related to the execution in the Russian Federation of decisions by the European Court of Human Rights.

“The Russian Federation has made the political decision to join the Council of Europe and remain a member of the organisation”, the Venice Commission says. “In ratifying the European Convention on Human Rights and accepting the jurisdiction of the Strasbourg Court, it has committed itself to executing the judgments of the Court. Indeed, there is no choice to execute or not to execute the Strasbourg Court judgment: under Article 46 of the Convention the judgments of the ECtHR are binding”.

“In countries where the constitution has supremacy over the European Convention on Human Rights, there exists a possibility that the Constitutional Court might find a contradiction between the Constitution and the interpretation by the European Court of Human Rights of a given provision of the European Convention on Human Rights. But this finding would not put an end to the question of execution”.

The Venice Commission notes that a dialogue between the European Court of Human Rights and the apex domestic courts is an appropriate forum for finding a solution before the matter becomes one for execution via the Committee of Ministers.

The Venice Commission is concerned that the proposed amendments entrench in the Constitution and enlarge the possibilities for the Russian Constitutional Court to declare that decisions of interstate bodies adopted on the basis of provisions of international treaties of the Russian Federation which collide with the Constitution may not be executed in the Russian Federation. The proposed amendments use the notion “contrary to the Constitution”, which is too broad a formula, broader than that of current Article 79 of the Constitution (“limit[ing] the rights and freedoms of the individual and the citizen or contradict[ing] the fundamentals of the constitutional system of the Russian Federation”).

These concerns, the Venice Commission says, should be seen against the backdrop of the proposed amendment to Article 83 of the Constitution, empowering the Council of the Federation to dismiss the judges of the Constitutional Court at the request of the President. “This makes the Court vulnerable to political pressure”, concludes the Council of Europe’s body.

“Whether – and to what extent – the proposed amendments will have adverse effects on honouring Russia's commitments under the ECHR depends on the manner in which the amendments will be applied. In that respect, the Commission reiterates that the power of the Constitutional Court to rule on the constitutionality of an ECtHR judgment should not extend to individual measures such as orders to pay just satisfaction”.

Therefore, and in the light of its previous conclusions, the Venice Commission considers that the proposed addition to Article 79 of the Constitution should be removed, or its wording should be amended to make it similar to the wording of Article 125 § 5 b), which underlines the aim to find a solution to possible contradictions. It also reiterates its previous conclusions as regards the limits to the power of the Constitutional Court to review the constitutionality of measures of execution of judgments of the European Court of Human Rights.

Finally, as concerns the compatibility of the proposed draft amendments with Article 15 (4) of the Constitution of the Russian Federation, it is not for the Venice Commission to assess it; such an assessment is up to the Constitutional Court of the Russian Federation, within its legal competences; the latter has actually examined it in its opinion of 20 March 2020, reaching the conclusion that the draft amendments are compatible with Article 15 of the Constitution.

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