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Attorney: Constitutional Amendment On International Law Could Give Russia A ‘Red Button’

In November 2019, a woman in Moscow holds a banner that demands Russia adopt a law against domestic violence. "They haven't killed us yet," the poster reads.
In November 2019, a woman in Moscow holds a banner that demands Russia adopt a law against domestic violence. "They haven't killed us yet," the poster reads.

By July 1, Russians will decide whether or not 206 amendments that could transform the role of the president and the status of citizens’ rights should become part of their constitution. Although all of these changes already have been approved by President Vladimir Putin and the legislature, President Putin has stated that they will become law only with Russian voters’ approval.

To accommodate the need for social distancing during the coronavirus pandemic, voting will begin on June 25. Two regions – Moscow and Nizhny Novgorod – have the option to vote online.

Until voting ends on July 1, Current Time will take a look each day at the most substantial proposed changes.

The Daily Amendment: International Law

What's Changing:

The proposal to make the Russian constitution take precedence over any international treaty or court decision has sparked conjecture that Moscow will now skedaddle out of treaty obligations or thumb its nose at court rulings not in its favor. But, in essence, some observers believe, the amendment is nothing new.

Already, in 2015, President Vladimir Putin signed a law that allows Russia’s Constitutional Court to ignore international courts’ rulings on human-rights cases if it considers that they contradict Russia’s own constitution.

“And now they’ve just transferred the text to the constitution,” commented Grigory Vaipan, an attorney at the Institute of Law and Public Policy, an independent Moscow think-tank that researches constitutional-rights issues.

If approved, the constitution’s revised Article 79 will read: “Decisions by interstate bodies, adopted based on provisions of the Russian Federation’s international treaties, interpreted in a manner contrary to the Constitution of the Russian Federation, are not enforceable in the Russian Federation.“

The Duma, the lower house of the Russian legislature, describes this proposed change as “The Rule of Russian Law.”

But experts from the Council of Europe’s Venice Commission, which advises the human-rights body on constitutional law, have noted that, under the European Convention on Human Rights, which Russia ratified in 1998, rulings from the European Court of Human Rights (ECHR) are “binding.”

The ECHR, located in Strasbourg, France, provides Russian citizens with a hearing on alleged rights-violations once they have exhausted such opportunities in Russian courts.

The Venice Commission fears that the amendment to Article 79 may simply increase the chances that the Russian Constitutional Court, whose judges are nominated by the president, will reject ECHR rulings against Russia.

A separate amendment, to Article 83, that allows the Federation Council to dismiss judges when the president so desires, could render the Court “vulnerable to political pressure,” the Commission wrote in its June 18 opinion.

Many rights activists and Putin critics would contend that it already is.

In September 2019, the Constitutional Court made its own position on the European Court of Human Rights clear by ruling that Russian officials can ignore ECHR decisions that contradict the Russian Constitution.

The move showed “that the Constitutional Court appears to be a willing tool in the hands of the executive branch at this point,” Tanya Lokshina, Human Rights Watch’s Russia program director, commented to RFE/RL.

Such criticism apparently bewilders Foreign Minister Sergei Lavrov. Responding to the Venice Commission’s opinion on June 19, he wondered “why so much attention is paid to the given issue, which is absolutely legitimate in terms of international law.”

Lavrov alleged that Germany, the United Kingdom, and “some others, which identify themselves as developed democracies,“ have adopted similar measures that block international court decisions that violate their respective constitutions. (The Venice Commission, at least in regard to Germany and other European democracies, does not appear to agree.)

"What Russia has ratified on the basis of its constitution remains our international obligations,” Lavrov said, TASS reported.

What Was Earlier Said About International Law In Russia’s Constitution:

Under the current Russian Constitution, Article 79 authorizes the government to “transfer” to international organizations “part of its powers” if doing so does not restrict or contradict the “rights and freedoms” of individuals and citizens or the constitution’s principles.

Apart from this, no constitutional restrictions exist on Russia executing the rulings of international courts or decisions of international organizations.

Article 15.4, which states that the “universally recognized norms of international law and international treaties and agreements” are part of Russia’s legal system, will not be changed. The article states that “rules of the international agreement shall be applied” if they diverge from existing laws. These provisions are often interpreted as indicating that Russia recognizes the primacy of international law.

As noted above, however, that has not meant that Russia’s compliance with international court decisions has been a given.

What This Amendment Will Mean For Voters:

When attorneys analyze the proposed amendment to Article 79, they mention, first of all, decisions by the European Court of Human Rights.

When the European Court rules against a European Convention on Human Rights signatory, the country either pays the specified compensation to the plaintiff; takes specific measures, such as restoring the plaintiff’s rights; or adopts more general measures, such as changing legislation or certain practices.

“Russia more or less pays compensations, but with individual and, even more so, general measures, everything is much worse,” commented Vaipan.

In 2019, the ECHR ruled that Russia does not have a mechanism to defend victims of violence and deemed that lack discriminatory. The Duma has since discussed a bill on domestic violence, but has not yet passed it.

So far, the Constitutional Court has twice decided that an ECHR judgement violated the constitution, but the consequences have varied.

In 2016, the Court found that the Russian constitution does not allow prisoners to vote, but ruled that the prison system could find a way for prisoners to be able to exercise that right. A later law on community service for prisoners enabled a few thousand inmates to vote in elections.

Its 2017 decision that Russia need not pay 1.9 billion euros (then about $2.15 billion) in compensation to shareholders of Yukos, an energy company expropriated by the government, attracted far greater public notice. The Constitutional Court decided that such a payment was unconstitutional since Yukos had dodged taxes.

Vaipan believes that the proposed amendment could lead the Constitutional Court to take additional controversial decisions and strike down any future ECHR rulings against laws that identify media (such as Current Time TV) and non-governmental organizations as foreign agents, block websites, or punish those who insult the government online, among others.

However, he underlines, the amendment itself may change little for voters since, to date, “Russia also didn’t particularly work on fulfilling the decisions of the ECHR.”

“This is a red button, and we can assume that it’ll be saved for those cases when no other options remain.”

He believes that proposed changes to the Constitutional Court’s powers deserve equal attention. Under Article 125.5b, the Court will be able to decide whether Russia can fulfill “decisions by a foreign country’s or international (inter-state) court, a foreign country’s or international arbitrage court.”

Russia participates in various international arbitrage courts, including The Hague’s Permanent Court of Arbitration, which is now reviewing arguments related to the Russian-Ukrainian conflict, Vaipan noted.

Yet, ultimately, he added, constitutional changes can shield the Russian government from negative international rulings only to a degree.

The Constitutional Court recognizing an international court’s decision as unconstitutional “still hasn’t saved anyone from the seizure of foreign assets.”