Introduced by Serena Forlati*
The Russian Constitutional Court’s judgment no 12-P/2016 of 19 April 2016, declining to ensure the execution of the general measures required by ECtHR’s judgment in Anchugov and Glad-kov v Russia on the issue of prisoners’ voting rights, comes at a time where ‘backlashes’ against international courts and tribunals are not infrequent, the latest example being the steps taken by Bu-rundi and South Africa to denounce the ICC Statute. Serious, sys-temic criticism has also been raised specifically towards human rights courts and their role: Venezuela’s denunciation of the Ameri-can Convention on Human Rights was justified with reference to the Inter-American Court’s attempt to substitute itself in the place of national governments. While no contracting State has so far with-drawn from the ECHR, the Convention system is under pressure because of similarly negative reactions to the ECtHR’s case law.
Judgment no 12-P/2016 does not take this kind of radically negative stance; it rather recalls the Russian Constitutional Court’s ‘multiannual experience of a constructive cooperation and mutually respectful dialogue with the European Court of Human Rights’ be-fore upholding the argument whereby constitutional provisions en-joy supreme status in the domestic legal order and, hence, prevail over the obligation to execute the ECtHR’s judgments. The Russian Constitutional Court thus follows the line of other constitutional courts in Europe as regards the relationship between international judgments and the national legal order – notably, of the Italian Con-stitutional Court in its well-known judgment no 238/2014 on jurisdic-tional immunities of the State.
On the one hand, the actual impact of Article 32 of the Russian Constitution on prisoners’ voting rights is arguably more nuanced than it would appear at first sight and mostly targets authors of seri-ous crimes: specifically as regards Messrs Anchugov and Gladkov, the ECtHR actually did acknowledge that this was the case, con-sidering that its own pronouncement would be an adequate form of satisfaction. In this respect the Russian Constitutional Court raises an argument touching upon the ECtHR’s interpretation of domestic law rather than of the European Convention as such; this is an area where the ECtHR usually defers to domestic courts, and has at times actually accepted the need to reconsider its own case law on the basis of input by national jurisdictions. Horncastle and the EC-tHR Grand Chamber’s ‘response’ in Al-Khawaja and Tahiri v the United Kingdom are probably the best-known example in this re-gard, but there are others and similar instances are currently at the ECtHR’s attention. The Italian Constitutional Court, when dis-cussing the effect of Varvara v Italy on confiscations in the con-text of criminal proceedings which eventually become time-barred, maintained that the obligation of domestic courts to implement EC-tHR judgments only applies to ‘well-settled case law’. At the same time it stressed that ‘under Italian law a judgment finding that an of-fence is time-barred is not logically or legally incompatible with a full finding of responsibility’. Whether the ECtHR can be con-vinced by this kind of reading will be seen when the Grand Cham-ber issues its long-awaited judgment in G.I.E.M. and Others v Ita-ly . Generally speaking, however, an approach whereby the EC-tHR takes the position of domestic courts into account in such a context seems to be in keeping with the principle of subsidiarity.
Other aspects of judgment no 12-P/2016 are more problematic in this respect; notably, the Russian Constitutional Court refers to an absence of a ‘well established’ interpretation of Article 3, Proto-col no 1. However, differently from its Italian counterpart, it does so in order to challenge the evolutive interpretation of such provision; the finding may touch not only upon the actual outcome of the in-terpretation of the Convention adopted by the ECtHR but also upon evolutive interpretation as a method of interpretation capable of binding all Contracting States. This kind of criticism draws the at-tention to the thin line between judicial dialogue, ‘systemic’ difficulty and backlash, which is at the heart of the complex relationship be-tween domestic courts and the ECtHR – or, for that matter, other international courts.
QIL asked Pietro Pustorino and Ivan Kleimenov, two scholars with different legal backgrounds but sharing the same sensibility for the above mentioned issues, to consider those and other legal questions raised by judgement no 12-P/2016 of the Russian Consti-tutional Court. While their readings of the judgment diverge in many respects, they both contribute to shed light on the implications of this controversial case.
