Abstract
In this contribution the work of the European Commission for Democracy through Law—better known as the Venice Commission—is discussed. While the Venice Commission has had few possibilities to examine the relationship between a domestic legal order and the jurisdiction of the European Court of Human Rights, an opportunity arose when the Venice Commission was asked to deliver an opinion on the 2015 amendments to the Constitutional Law on the Constitutional Court of the Russian Federation. This chapter will give a brief description of the Russian law concerned, of the opinion adopted by the Venice Commission, and of some subsequent developments in the practice of the Russian Constitutional Court after the adoption of the Venice Commission’s opinion. This contribution will conclude by addressing some of the possible underlying reasons why the supremacy doctrine under international law (and Article 46 ECHR more specifically) is under attack by ‘constitutional law exceptions’ and ‘national identity’ arguments.
This contribution is written in my capacity as a member of the Venice Commission, not as the Legal Adviser of the Netherlands Ministry of Justice.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
The Venice Commission is a so-called ‘enlarged agreement’ which means that non-Member States of the Council of Europe may also take part in the work of the Commission on an equal footing with the 47 Member States of the Council of Europe. In 2019, a total of 61 Member States participated in the work of the Commission, including 13 non-European members and Kosovo (which should be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo) with a total population of more than 3 billion people.
- 2.
It has adopted more than 500 opinions on more than 50 countries and 80 studies.
- 3.
For more general background information on the relation between the Russian Federation and the European Convention on Human Rights: L Mälksoo/W Benedek (eds), Russia and the European Court of Human Rights – The Strasbourg Effect (2017); R Fleig-Goldstein, ‘The Russian Constitutional Court versus the European Court of Human Rights: How the Strasbourg Court Should Respond to Russia’s Refusal to Execute ECtHR Judgments’ (2017) 56 Columbia Journal of Transnational Law 172–218; O Chernishova/M Lobov (eds), Russia and the European Court of Human Rights: A Decade of Change. Essays in honour of Anatoly Kovler (2013); and A Burkov, ‘How to improve the results of a reluctant player: The case of Russia and the European Convention on Human Rights’ in: S Flogaitis/T Zwart/J Fraser (eds), The European Court of Human Rights and its discontents (2013), pp 147–157.
- 4.
See CDL-REF(2016)006 containing a translation provided by the Constitutional Court of the Russian Federation of the amendments to the Federal constitutional law on the Constitutional Court of the Russian Federation of 14 December 2015. The 2015 amendments are described in the Interim Opinion of the Venice Commission (CDL-AD(2016)005, paras 28–34).
- 5.
Less relevant for the purposes of this book is the fact that the Russian Constitutional Court is competent to render its judgment without holding a hearing. The Venice Commission did raise this issue in its Interim Opinion: ‘Only the position of the federal authority which submitted the complaint appears to be relevant, while the position of the people concerned may be formally disregarded. However, complaints brought forward by the federal authority will ordinarily concern a judgment of the ECtHR following an individual petition based on Article 34 of the Convention. In that case, the judgment will affect an individual person or a group of persons, whose rights have to be ensured in the proceedings before the RCC.’ (CDL-AD(2016)005, para 85). It therefore recommended to amend the Russian legislation so as to allow the former applicant to the ECtHR to submit his or her observation in order to fully respect the principle of equality of arms.
- 6.
A petition to the Russian Constitutional Court from 93 deputies, representing all parliamentary fractions of the State Duma of the Russian Federation.
- 7.
CDL-REF(2016)019, pp 14 and 15.
- 8.
See CDL-AD(2016)005, paras 17–22.
- 9.
Valery Zorkin, ‘Challenges of implementation of the Convention on Human Rights’, a speech given at the international conference on ‘Enhancing National Mechanisms for Effective Implementation of the European Convention on Human Rights’ (proceedings available at: <https://rm.coe.int/16806fe1a5>), p 16. He refers, inter alia, to the Judgment of 6 December 2013 N 27-П ‘On the case concerning the review of the provisions of Article 11 and Items 3 and 4 of Section 4 of Article 392 of the Civil Procedure Code of the Russian Federation in connection with the request of the Presidium of Leningrad Circuit Military Court’ (Item 1 of the Resolution part). In its decision the Russian Constitutional Court ‘pointed out that if a court of general jurisdiction comes to the conclusion about impossibility of execution of a judgment of the ECtHR without adjudication of unconstitutionality of the provisions, the constitutionality of which has earlier been confirmed by the Constitutional Court, the court of general jurisdiction is entitled to suspend the proceeding and file a petition with the Constitutional Court’.
- 10.
CDL-AD(2016)005, para 26.
- 11.
Ibid.
- 12.
Ibid, pp 137–138.
- 13.
Ibid, p 15.
- 14.
Ibid, p 16.
- 15.
Anchugov and Gladkov v Russia Appl Nos 11157/04, 15162/05 (ECtHR, 4 July 2013).
- 16.
Russian Constitutional Court, Judgement N 12-П/2016 of 19 April 2016, para 4.3; translation according to CDL-REF(2016)033.
- 17.
CDL-AD(2016)005, para 71.
- 18.
Swedish Engine Drivers’ Union v Sweden Appl No 5614/72 (ECtHR, 6 February 1976), para 50.
- 19.
James and Others v the United Kingdom Appl No 8793/79 (ECtHR, 21 February 1986), para 85.
- 20.
See also the judgment of the Russian Constitutional Court of 14 July 2015 (CDL-REF(2016)019) in section 1, para 1: ‘[i]n accordance with Article 46 of this Convention the Russian Federation in particular, as indicated in Article 1 of the said Federal law, recognized ipso facto and without special agreement the jurisdiction of the European Court of Human Rights as obligatory on the issues of interpretation and application of the Convention and Protocols thereto’.
- 21.
J Gerards/J Fleuren, ‘Comparative Analysis’ in J Gerards/J Fleuren (eds), Implementation of the European Convention on Human Rights and of the Judgments of the ECtHR in National Case-Law (2014), pp 333–374, at 371.
- 22.
A judgment of the ECtHR is formally binding only on the respondent State under Article 46 ECHR (there is no erga omnes effect). However, Dutch (judicial) authorities will frequently consider the conclusions to be drawn from a judgment finding a violation of the Convention by another State, where the same problem of principle exists within the Dutch legal system. In this respect, reference is often made to the principle of res interpretata whereby it is argued, based on Articles 1, 19, 32 and 46 ECHR, that national authorities should take account of the Convention as interpreted by the Court. See A Bodnar, ‘Res Interpretata: Legal effect of the European Court of Human Rights’ Judgments for other States than those which were party to the proceedings’ in: Y Haeck/E Brems (eds), Human Rights and Civil Liberties in the 21st Century (2014), pp 223–262. For further discussion, see M Breuer, Chap. 11, in this volume.
- 23.
CDL-AD(2016)005, para 47.
- 24.
CDDH report on the longer term future of the system of the European Convention on Human Rights (CDDH(2015)R84 Addendum I, para 169). See also the Brussels Declaration which was adopted in March 2015: the Conference stressed ‘that full, effective and prompt execution by the States Parties of final judgments of the Court is essential’.
- 25.
Scozzari and Giunta v Italy [GC], Appl Nos 39221/98, 41963/98 (ECtHR, 13 July 2000), para 249.
- 26.
CDL-AD(2016)005, para 73.
- 27.
Ibid, para 72. A termination of the treaty obligation would however not retroactively remove the obligation to abide by judgments that have already been rendered by the Court.
- 28.
Ibid, para 102.
- 29.
The Court may initiate a pilot judgment procedure where the facts of an application ‘reveal in the Contracting Party concerned the existence of a structural or systemic problem or other similar dysfunction which has given rise or may give rise to similar applications’ (see Rule 61 of the Rules of Court). This procedure allows the Court to identify ‘the type of remedial measures which the Contracting Party concerned is required to take at the domestic level by virtue of the operative provisions of the judgment’.
- 30.
OAO Neftyanaya Kompaniya Yukos v Russia (Just Satisfaction), Appl No 14902/04 (ECtHR, 31 July 2014). In a Chamber judgment on the merits, delivered on 20 September 2011, the Court found a violation of Article 6 (the right to a fair trial) of the Convention concerning the tax assessment proceedings for the year 2000 against Yukos, because it had had insufficient time to prepare its case before the lower courts. The Court also found a violation of Article 1 of Protocol No 1 to the Convention (the right to property). It held that the assessment of the penalties relating to 2000 and the doubling of the penalties for 2001 had been unlawful. It held that the Russian authorities had failed to strike a fair balance between the legitimate aim of these proceedings and the measures employed—in particular by being inflexible regarding the pace of the proceedings and obliging Yukos to pay excessive fees. In a Chamber judgment, adopted on 24 June 2014, it subsequently ruled on the question of the application of Article 41 ECHR (just satisfaction). The Court held, inter alia, that Russia was to pay the shareholders of Yukos an amount of EUR 1,866,104,634 in respect of pecuniary damage. A subsequent request for referral of the case to the Grand Chamber of the Court submitted by the Russian Government was rejected by the Court’s panel on 15 December 2014, see Press Release ECHR 377 (2014) of 16 December 2014.
- 31.
My research is limited to those public statements that were available in English.
- 32.
Zorkin, ‘Challenges of implementation’ (fn 9), p 12, fn 11.
- 33.
See also the Venice Commission in its opinion; CDL-AD(2016)005, para 45.
- 34.
Zorkin, ‘Challenges of implementation’ (fn 9), p 12, fn 11.
- 35.
Young, James and Webster v the United Kingdom Appl Nos 7601/76 and 7806/77 (ECtHR, 13 August 1981), para 53.
- 36.
CDDH report on the longer term future of the system of the European Convention on Human Rights, CDDH(2015)R84 Addendum I, para 131.
- 37.
Zorkin, ‘Challenges of implementation’ (fn 9), p 12, fn 11.
- 38.
Fatullayev v Azerbaijan Appl No 40984/07 (ECtHR, 22 April 2010), para 174; in this case, the Court ordered the respondent State to release the applicant from detention.
- 39.
Broniowski v Poland [GC] Appl No 31443/96 (ECtHR, 22 June 2004), para 194.
- 40.
Oleksandr Volkov v Ukraine Appl No 21722/11 (ECtHR, 9 January 2013), paras 202 & 208.
- 41.
CDDH (2013)R79 Addendum I, paras 12 and 13.
- 42.
See the CDDH report containing conclusions and possible proposals for action on ways to resolve the large number of applications arising from systemic issues identified by the Court, CDDH(2013)R78 Addendum III. See also the CDDH report on the longer term future of the system of the European Convention on Human Rights, CDDH(2015)R84 Addendum I, para 95.
- 43.
See the Court’s factsheet on pilot judgments (updated in January 2019; see <http://www.echr.coe.int/Documents/FS_Pilot_judgments_ENG.pdf>): ‘Many of the about 57,250 cases pending before the European Court of Human Rights are so-called “repetitive cases”, which derive from a common dysfunction at the national level. The pilot judgment procedure was developed as a technique of identifying the structural problems underlying repetitive cases against many countries and imposing an obligation on States to address those problems. Where the Court receives several applications that share a root cause, it can select one or more for priority treatment under the pilot procedure. In a pilot judgment, the Court’s task is not only to decide whether a violation of the European Convention on Human Rights occurred in the specific case but also to identify the systemic problem and to give the Government clear indications of the type of remedial measures needed to resolve it. A key feature of the pilot procedure is the possibility of adjourning, or “freezing”, related cases for a period of time on the condition that the Government act promptly to adopt the national measures required to satisfy the judgment. The Court can, however, resume examining adjourned cases whenever the interests of justice so require’.
- 44.
At the time of the codification of pilot judgments (in Rule 61 of the Rules of Court) in February 2011 the workload of the Court had almost reached its highest point ever of 160,200 cases on 1 September 2011.
- 45.
The Interlaken process and the Court, 2015 Report, 12 October 2015, p 3 (to be consulted on: <http://www.echr.coe.int/Documents/2015_Interlaken_Process_ENG.pdf>).
- 46.
‘“Repetitive applications” are those arising from systemic or structural issues at the national level. The term “repetitive” implies that the Court has already addressed the underlying issue in a judgment’, CDDH report containing conclusions and possible proposals for action on ways to resolve the large number of applications arising from systemic issues identified by the Court, CDDH(2013)R78 Addendum III, para 4.
- 47.
Resolution Res(2004)3 on judgments revealing an underlining systemic problem.
- 48.
This issue should be distinguished from the argument that human rights law is ‘anti-democratic’ or the counter-majoritarian difficulty of human rights, which will be discussed below.
- 49.
Zorkin, ‘Challenges of implementation’ (fn 9), p 12. See also his Civilization of Law and Development of Russia (2015), p 159.
- 50.
SAS v France [GC] Appl No 43835/11, (ECtHR, 1 July 2014) para 129.
- 51.
Animal Defenders International v UK [GC] Appl No 48876/08 (ECtHR, 22 April 2013), para 108.
- 52.
See on this issue also L Lazarus/N Simonsen, ‘Judicial Review and Parliamentary Debate: Enriching the Doctrine of Due Deference’ in M Hunt/HJ Hooper/P Yowell (eds), Parliaments and Human Rights – Redressing the Democratic Deficit (2015), pp 385–403.
- 53.
R Spano, ‘Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity’ (2014) 14 Human Rights Law Review 487–502. See also: D Spielmann, ‘Allowing the Right Margin: The European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?’, speech delivered at the Max Planck Institute for Comparative Public Law and International Law on 13 December 2013 (available at <https://www.echr.coe.int/Documents/Speech_20140113_Heidelberg_ENG.pdf>): ‘It is clear from the case-law that the legislative process can be very relevant to the margin of appreciation’ (not reproduced in (2012) 14 Cambridge Yearbook of European Legal Studies 381–418).
- 54.
See for example statements made by Stef Blok (at that time a Member of Parliament in the Netherlands for the Liberal Party) in a Dutch daily newspaper called De Volkskrant on 7 April 2011 saying that judges in Strasbourg have become politicians in judicial robes who declare the Convention breached even if domestic policy cannot reasonably be considered to be in violation with human rights standards.
- 55.
Khashiyev and Akayeva v Russia Appl Nos 57942/00, 57945/00 (ECtHR, 24 February 2005) on anti-terrorist operations in the North Caucasus.
- 56.
Konstantin Markin v Russia [GC] Appl No 30078/06 (ECtHR, 22 March 2012), a case concerning a military serviceman who was divorced from his wife and who had custody over their three young children. He applied for three years parental leave, which was denied by the authorities as parental leave of this duration was only allowed for female military personnel.
- 57.
Catan and Others v Russia Appl No 43370/04 et al (ECtHR, 19 October 2012) on the right of education in Transdniestria with a dissenting opinion of the Russian judge Kovler. See also Zorkin, ‘Challenges of implementation’ (fn 9), p 12, fn 11.
- 58.
For example, Alekseyev v Russia Appl No 4916/07 (ECtHR, 21 October 2010) on the ban on holding gay marches.
- 59.
M Hunt, ‘Introduction’ in M Hunt/HJ Hooper/P Yowell (eds), Parliaments and Human Rights – Redressing the Democratic Deficit (2015), pp 1–25.
- 60.
See more elaborately M Kuijer, Van Lawless naar een rechtmatige bestrijding van terrorisme (2005), in which inter alia the response of the British authorities to the McCann judgment (Appl No 18984/91, ECtHR, 27 September 1995) is described. The case concerned an anti-terrorist operation by Special Forces in which three alleged IRA terrorists were killed. The Court found a (procedural) violation of Article 2 ECHR. The British tabloids characterised the judgement as a victory of the IRA; ‘Europe’ was frustrating an effective fight against terrorism. Prime Minister John Major described the judgement as ‘irresponsible and defying common sense’ (The Independent of 28 September 1995). Vice-Prime Minister Hesseltine announced ‘not to take the slightest notion of this ludicrous decision’.
- 61.
See more elaborately M Kuijer, ‘The Impact of the Case Law of the European Court of Human Rights on the Political Debate in the Netherlands concerning the Court’ in M van Roosmalen/B Vermeulen/F van Hoof/M Oosting (eds), Fundamental Rights and Principles – Liber Amicorum Pieter van Dijk (2013), pp 99–114. See also inter alia M Bossuyt, ‘Judges on Thin Ice: The European Court of Human Rights and the Treatment of Asylum Seekers’ (2010) 3 Inter-American and European Human Rights Journal 3–48 and BEP Myjer, Het leest als een boek (2011). See also statements made by politicians in inter alia The Netherlands (such as Prime Minister Mark Rutte in a daily newspaper called NRC on 31 May 2010 calling for an amendment of outdated European treaties if this is necessary to reduce the large influx of migrants), Switzerland and the United Kingdom.
- 62.
Zorkin, ‘Challenges of implementation’ (fn 9), pp 13–14. See also his ‘Россия и Страсбург, Проблемы реализации Конвенции о правах человека’ in the Rossiiskaia Gazeta of 21 October 2015 (<https://rg.ru/2015/10/21/zorkin.html>): ‘being a party to an international treaty does not mean giving up your sovereignty, the judicial expression of the supremacy of the constitution’.
- 63.
See more elaborately M Kuijer, ‘Margin of Appreciation Doctrine and the Strengthening of the Principle of Subsidiarity in the Recent Reform Negotiations’ (2017) 36 Human Rights Law Journal 339–347.
- 64.
Rekvényi v Hungary [GC] Appl No 25390/94 (ECtHR, 20 May 1999).
- 65.
Jahn and Others v Germany [GC] Appl No 46720/99 (ECtHR, 30 June 2005), paras 91 and 113.
- 66.
See the speech by Mr Georgy Matyushkin, the Russian Deputy Minister of Justice, as reproduced in the Proceedings of the High-Level Conference on the Implementation of the European Convention on Human Rights, our shared responsibility, Council of Europe 2015, p 99.
- 67.
CDDH(2015)R84 Addendum I, para 111: ‘[T]he Court should be careful to ensure that its efforts to reduce its caseload do not threaten the quality of its judgments’.
- 68.
D Spielmann in ECtHR, Annual Report 2015 (2016), p 34.
- 69.
Jaloud v The Netherlands [GC] Appl No 47708/08 (ECtHR, 20 November 2014).
- 70.
Jaloud v The Netherlands [GC] Appl No 47708/08 (ECtHR, 20 November 2014), concurring opinion of Judge Spielmann, joined by Judge Raimondi, para 5.
- 71.
Jaloud v The Netherlands [GC] Appl No 47708/08 (ECtHR, 20 November 2014), joint concurring opinion of Judges Casadevall, Berro-Lefèvre, Šikuta, Hirvelä, López Guerra, Sajó and Silvis, para 5.
- 72.
CDDH(2015)R84 Addendum I, paras 96 et seq.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2019 Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg 2019
About this chapter
Cite this chapter
Kuijer, M. (2019). The Perspective of the Venice Commission. In: Breuer, M. (eds) Principled Resistance to ECtHR Judgments - A New Paradigm?. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, vol 285. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-58986-1_9
Download citation
DOI: https://doi.org/10.1007/978-3-662-58986-1_9
Published:
Publisher Name: Springer, Berlin, Heidelberg
Print ISBN: 978-3-662-58985-4
Online ISBN: 978-3-662-58986-1
eBook Packages: Law and CriminologyLaw and Criminology (R0)