CCR №5 (108) 2015
In principle, no… but yes, it is possible! The Russian Constitutional Court and the binding power of decisions of the European Court of Human Rights

Abstract

The commentary concerns the decision of the Russian Constitutional Court on the limits of the mandatory effect of decisions of the ECHR. The problem is a problem well known also to other courts – supremacy of the constitution in relation to international treaties – but has only partially been resolved well. The Constitutional Court tries to concretize the inter-judicial dialogue by limiting the “monologue” of the ECHR, an approach which has some sense and justification. However, while asserting the scope of its constitutional control, the Constitutional Court makes unconvincing arguments regarding sovereignty, ignores essential features of the Russian Constitution and its own past practice regarding Part 1, Art. 17, of the Constitution, and doesn’t explain the significance of Art. 46 of the Vienna Convention in determining limitations on the mandatory effect of ECHR decisions. Furthermore, the Court sometimes relies on worn-out terminology, thus creating a negative uncertainty about the implementation of ECHR decisions, which is impermissible in the current political situation.

About the authors:
Alexander Blankenagel – Professor, Chair of Russian Law, Public Law and Comparative Law, Humboldt University, Berlin
Ilya Levin – Dr.Jur., jurist

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