In a judgment passed on 6 December 2013 the Constitutional Court of Russia (“Court”) for the first time has expressed its view on how decisions of the European Court of Human Rights (“ECtHR”) are to be enforced in Russia if they appear to be in conflict with the Constitutional Court’s own case law. By doing so, the Court has joined a number of other top European national courts – most notably those of Germany, Italy, and the United Kingdom – which have recently been trying to define the extent of permissible impact of ECtHR jurisprudence on their domestic legal orders. Despite the earlier call by the President of the Court to set the “limits to [Russia’s] acquiescence” (to ECtHR’s adverse rulings), the Court has refrained from laying down any general principles or proclaiming its own superiority vis-à-vis ECtHR and has instead opted for an ad hoc resolution of conflicts on a case-by-case basis. Albeit with some important ECtHR-friendly caveats, the Court’s reasoning is purposely open-ended and leaves the Court free to embrace the law of the European Convention of Human Rights (“Convention”) just as much as to deviate from it, depending on the circumstances of future cases. In this sense, the judgment is emblematic of the contemporary pragmatic approach to the relationship between international and municipal law.
The Court’s judgment is yet another chapter in the case of Konstantin Markin, a Russian military serviceman who was denied three-year parental leave to take care of his three children because under Russian law such leave could only be granted to female military personnel. In January 2009 the Constitutional Court summarily rejected Markin’s complaint, finding no constitutional issue. The Court considered that the relevant provisions of the Law on the Status of Military Personnel and related laws did not constitute gender discrimination in violation of the equal protection clause of Article 19 of the Russian Constitution because servicewomen’s exceptional entitlement to parental leave was based on the “limited participation of women in military service” and the “special social role of women associated with motherhood”. By contrast, in Konstantin Markin v. Russia decided a year and a half later, in October 2010, the Chamber of ECtHR found a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the Convention. Not only did the Chamber sharply criticize the reasoning of the Constitutional Court as “unconvincing” and founded upon “gender prejudices”, but it also suggested, under the broad reading of Article 46 of the Convention, that the Russian government amend the provisions of domestic law which were found incompatible with the Convention. After furious response by Russian officials, including the President of the Constitutional Court who urged to “protect [Russia’s] sovereignty, . . . national institutions and . . . national interests”, in March 2012 the Grand Chamber of ECtHR softened its rhetoric but nonetheless affirmed the Chamber judgment.
Mr Markin petitioned a local court in Saint Petersburg to reopen the proceedings in his case, relying on Article 392 of the Code of Civil Procedure (“Code”) which lists a decision of ECtHR in favor of the applicant as a ground for judicial review. However, the Code was silent on whether that option was still open where a decision of ECtHR contradicted a prior ruling of the Constitutional Court in the same case. Faced with two opposite opinions of the lower courts on this issue, the district court requested the Constitutional Court to assess the constitutionality of Article 392 in conjunction with Article 11 of the Code (the latter lists sources of law to be applied by courts, including the Constitution, international treaties, and federal laws). The district court argued that within the domestic legal framework decisions of the Constitutional Court and of ECtHR appear to be “equal”, and courts are therefore unable to decide cases if those decisions are at odds with each other.
The judgment of the Court has two dimensions: a procedural one and a substantive one, with much emphasis on the former and the apparent hesitation to elaborate on the latter. In terms of procedure, the Court has ruled that Articles 11 and 392 of the Code are in conformity with the Constitution because they do not, contrary to the view of the district court, create a deadlock: a local court must in any event reopen proceedings and, if it cannot enforce a decision of ECtHR without at the same time disregarding provisions of domestic law, it must request the Constitutional Court to assess the constitutionality of such provisions. In this aspect, the judgment of the Court mirrors the approach taken by the Constitutional Court of Italy which in its decisions Nos. 348/2007 and 311/2009 declared itself exclusively competent to declare municipal laws inconsistent with the Convention (and thus with the Constitution). For good or for ill, this approach conflates issues of constitutionality and “conventionality” of domestic legislation and narrows the scope for direct application of the Convention by the lower courts.
Much more intriguing, however, is the substantive aspect of the whole problem: even if we know who is in charge of dealing with normative conflicts between ECtHR’s and the Constitutional Court’s interpretations of human rights, it still remains to be determined how or based on what criteria those conflicts should be resolved. Here, the Court has entirely avoided the purely dogmatic question of supremacy – a question that has plagued the reasoning of the lower courts in the Markin case as well as many commentators in Russia and abroad. Whose opinions are legally superior – those of the national court or those of the international one? Instead of trying (in vain) to come up with a logically impeccable answer to this question, top European national courts facing this issue have instead developed some sort of balancing tests to deal with conflicting decisions of ECtHR and of their own. Thus, the Federal Constitutional Court of Germany has declared in the Görgülü case that German courts must interpret domestic law in accordance with the Convention unless this would lead to a “violation of fundamental principles of the constitution”. The Supreme Court of the United Kingdom has opined in the Pinnock case that British courts should implement “a clear and constant line of [ECtHR] decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of [British] law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle”. These tests both reaffirm international obligations of states members to the Convention and leave national courts enough space for maneuver and “constructive dialogue” with ECtHR, even though in practice compliance is overwhelming and instances of refusal to implement ECtHR decisions into domestic law are virtually non-existent.
Yet, the judgment of the Russian Constitutional Court lacks even these guiding standards: the Court has simply noted that “if . . . challenged legal provisions are found to be consistent with the Constitution, the Constitutional Court . . . within the limits of its competence will determine possible constitutional means of implementation of the judgment of [ECtHR]”. No rule emerges from this kind of reasoning: the approach envisaged by the Court is completely ad hoc. Still, there are two important caveats which signal the Court’s desire to avoid isolation from international law and from decisions of international institutions: first, the Court has emphasized that a blanket refusal to implement an ECtHR decision is anyway “not an option”; second, the Court has considered it possible to depart from its previous decisions in order to accommodate opinions of ECtHR – a finding of a violation of the Convention by the latter might mean, according to the Court, that a constitutional issue has re-emerged.
So where does this leave us? The Markin case itself might very well come to the Court again (for the third time), although it is unlikely to generate any further hostility between ECtHR and the Court: the arguments of ECtHR judges have already made their way into the Russian society, and the Defense Ministry has introduced a bill which would amend the legislation and grant parental leave to servicemen. So the controversy in this matter is over. What about other potential points of disagreement? Restrictions of LGBT rights or curtailment of NGO activities might well lead to new clashes between Strasbourg and Russia. The approach adopted by the Court in the discussed judgment acknowledges this inherent uncertainty of life and the ensuing difficulty with any clear-cut rules of conflict resolution: no national judge can exclude the possibility of a case like Lautsi v. Italy being brought before him by a successful ECtHR applicant, a case where appeals to formal legal hierarchies between the international and the national would appear blind to the realities of conflict of values as they play out in the unique circumstances of actual disputes. Hence the contemporary turn to pragmatism with its promise of practical and working solutions for individual cases and – of course – the corresponding risks of arbitrariness and abuse of discretion. This ambivalence of ad hoc scenarios is now being realized by the Russian legal community, especially those favoring integration with Europe: on the one hand, there is a sense of relief that the Constitutional Court has refrained from asserting “national sovereignty” and its own “monopoly of interpretation” vis-à-vis ECtHR; on the other hand, there is no guarantee that same things cannot be done through the backdoor, case by case. Yet, this is the reality of contemporary legal thinking – the era in which mutual contestation between parties to the legal process moves from the general to the particular. Only a “molecular motion” (to borrow the words of the United States Justice Oliver W. Holmes) has been made today, and the rest is left for tomorrow, offering opportunities for further debate. Instead of a full stop in the Markin case, there is a comma.