Olga Sadovskaya

Amendments to the Constitution of the Russian Federation were proposed by the Russian President in his message to the Federal Assembly on 15 January, 2020 and adopted as the Law on Amendment No. 1-FKZ “On improving regulation of certain issues of the organisation and functioning of public authorities” dated of 14 March, 2020. A total of 206 amendments were proposed to the Constitution, and all of them were submitted to the so-called all-Russian vote as a package.

We know what came out of this: the amendments received public support, and on 3 July, 2020, the president signed a decree on their entering into force as of the next day. Here, I will not either assess the truth of the voting results, or the quality of the organisation of this process, since I am not an expert in this field, and also it is impossible to analyse all 206 amendments in one article. As an expert in the field of international law, I will focus on one of them.

As a result of the plebiscite, Article 79 of the Constitution was amended to exclude the implementation of decisions of interstate bodies adopted on the basis of the provisions of international treaties of the Russian Federation in their interpretation that contradicts the Constitution of the Russian Federation. The article itself does not change the priority of international law, which is enshrined in Article 15 of the Constitution, but it creates a huge field for indiscriminate law enforcement at the national level.

Here it should be noted that since 2015, Article 125 of the Constitution has already secured the priority of decisions of the Constitutional Court of Russia over decisions of the European Court of Human Rights (ECHR). The catalyst for the adoption of this amendment was the conflict between the decisions of the ECHR and the decisions of the Constitutional Court of the Russian Federation in the case of Konstantin Markin, a serviceman who demanded an equal right with a woman to take parental leave. But five years ago, only the Constitutional Court was empowered to assess the decisions of the ECHR, and the court itself has so far used this right only twice and in cases that dealt with issues important to the authorities.

Nevertheless, already in 2015, we saw a rather active media campaign that Russia is no longer obliged to implement the European Court decisions. I know some cases when people, being mistaken about the role of the ECHR decisions, did not file complaints. The current situation with the amendment to Article 79 is pushing by the media the same way, and every week I am asked when the decisions of the European Court will automatically not be accepted by Russia for implementation even in part of compensation payments. I think this year we will witness a drop in the number of complaints precisely because of the rather aggressive propaganda campaign.

Even if we discard speculation on this topic, it is not entirely clear what awaits us after this amendment. I believe that even the legislator does not have a clear understanding of the result of this action. In essence, the Constitution is a legal act of direct action, and any local court has the right to apply this Article 79. At the same time, there is an old decision of the Constitutional Court that its powers can be exercised only by it and not by any other court. However, everything flows, everything changes: the Constitutional Court can issue a new ruling, and a local judge can try to step on the thin ice of the new rules. Either way, Pandora’s box is ready. The only question is who will open it, when and for what purpose.

 

Olga Sadovskaya has been working as a vice-president of the Russian public organisation Committee against Torture. She works on international protection and development of legislation in the field of human rights protection. Olga is also a member of the Executive Committee of the World Organisation against Torture, an external expert of UNDP and a member of a public monitoring commission for places of detention. She is a member of the Board and of the Advocacy Task Force of the EU-Russia Civil Society Forum.