Priority of international law over the Russian is recognized or not?

Another ten to twenty years in our country could be said that the priority of international law over the Russian is recognized. The Constitution of the Russian Federation (Article 15) speaks about this eloquently. If domestic rules of law run counter to international ones, then the latter are considered to be higher in importance. Rather, they were considered until recently. Today everything has changed. The priority of international law over the Russian one is now recognized only in exceptional cases. In this we will try to understand.

Priority of international law over the Russian is always recognized?

At the end of 2015, the State Duma adopted a contradictory law: the subordination of European courts over domestic ones is abolished. Now the priority of international law over the Russian is recognized with the consent of the Constitutional Court of the Russian Federation.

What does it mean?

This law means that our country literally distanced itself from Strasbourg. Now the ECHR (European Court of Human Rights) can not directly influence our jurisprudence.

Opinions on this issue are divided: some are happy, believing that the "legal occupation" of our country has ended, while others, on the contrary, are at a loss. And it's not about patriotism. In fact, the State Duma adopted an absolutely unconstitutional law. It says that if the norms of international law contradict the internal, Russian, it is the international ones that are considered to be the main ones. In other words, the priority of international law over Russia is recognized by the Constitution of the Russian Federation.

Again we change the Basic Law?

Apparently, the Constitution of the country will have to be changed again. Until 2015 it was assumed that if, for example, the ECHR recognizes the decision of our courts as unfair, then it will be necessary to change them. Now, in similar cases, the verdict from Strasbourg will fall into the Constitutional Court. If the latter acknowledges that the decision of the ECtHR is contrary to the Constitution of the Russian Federation, then this decision will not have any legal force for our country.

Absolutely paradoxical situation, at first glance: a decision will be made on the basis of the conformity of the norms of the Constitution with a clear violation of this very Constitution (Article 15). There is only one way out: to abolish this article of the Basic Law of the country.

The end of the occupation or the outbreak of arbitrariness?

Active people divided into two camps:

• Patriots . We are glad that, at last, legal control over our country has ended.
• Liberals . It is lamented that now Russia has lost its last hope for a fair and humane trial.

Of course, one can object both to one and the other. Let's agree that if someone out there, unfriendly to our country, has the supreme legal authority over us, then this is not very good. In fact, this lack of sovereignty in the state. Yes, of course, the legal system leaves much to be desired. But, at least, she is independent of "Uncle Sam".

On the other hand, many who have faced the judicial system are not very satisfied with it: they complain about subjectivity, the lack of clear laws, non-compliance with procedural norms, formal decision-making, etc.

Therefore, for some, the ECHR is seen as a salutary hope for justice, which today is allegedly deprived of citizens of our country.

But the fact remains: the priority of international law over the Russian is recognized in cases of approval by the Constitutional Court of the Russian Federation.

"Legal nihilism" only in Russia?

In fact, our country is not the only one. On February 26, 2004, in the case of Gergulu v. Germany, the Constitutional Court of the FRG issued something similar in its decision. He ruled that the decision of the ECtHR is only a guide for the adoption of domestic regulations. He does not need to follow.

On October 22, 2014, the Constitutional Court of the Italian Republic also established that there should be a priority of Italy's Basic Law over the norms of the ECHR.

Thus, it can be concluded that Russia is not the only country that has adopted a law on the independence of decisions from the ECHR.

Why this attitude to Strasbourg?

Such an attitude to the international court can be explained: decisions are often made without taking into account the specifics of domestic legislation. There is the Convention on Human Rights. It is the same for all countries that have ratified it, including Russia, which adopted it in 1998. Decisions are made only on the basis of this Convention, without deepening into domestic legislation.

However, our officials are a little cunning, seeing the reason for the appearance of such a law only in the "incorrect interpretation of the ECHR of our domestic laws." In blame Strasbourg legislators put ignorance of psychology, mentality, culture, traditions. In fact, this means only one thing: a new original ideology is being built in Russia. How many times have we heard about our identity, spirituality, exclusiveness, etc.? In fact, Russia has taken one more step to preserve its political and legal system.

Who appoints the judges? The president. Therefore it is naive to believe that Russia will put up with practice, when many legal matters leave the influence of the political sphere. Although the priority of international law over the Russian is recognized by the Constitution of the Russian Federation, in practice it was necessary to change this to our officials.

The case of YUKOS is a serious blow to the positions of Russia's political elites

It all started with the scandalous case of Yukos. International courts seized from Russia several billion dollars in favor of the former owners of the concern. After that it became clear: it's time to change something in this system. Recall that Khodorkovsky was accused of dishonest privatization. The billionaire himself stated that the practice his company used was normal at that time. Of course, Khodorkovsky's rules of law were applied that did not apply to other companies loyal to the Kremlin, but this should not justify Yukos.

International courts have been politicized in this process. There was a clear violation of Russian legislation. The fact that the laws were not applied to other market participants should not, in the opinion of Russian lawyers, relieve the owners of the oil company of responsibility. But, as it turned out, the international courts recognized the case as politicized and took the side of the disgraced oligarch.

Such a process made it clear to our authorities: it's time to distance ourselves from all such organizations, as an unpleasant precedent for future processes is being created.

As a result, a law emerged, according to which the priority of international law over the Russian law is recognized after the Constitutional Court of the Russian Federation has verified compliance with the ECHR decision with the Basic Law of the Russian Federation.

The change in the procedure for filing a complaint with the ECtHR against Russia

However, it should be noted that our country has not withdrawn from the international legal system. Officially, the Constitutional Court of the Russian Federation explains that, nevertheless, the priority of international law over the Russian is recognized, albeit formally. Most likely, this refers to non-political cases, on which all the same will be reversed decisions, if the ECHR does not agree with our justice. However, in any case now it is left to the discretion of the Constitutional Court of the Russian Federation.

The rules for filing a complaint to Strasbourg also changed. Earlier in the civil case, for example, it was enough to lose it in the second instance, and it was already possible to file a complaint with the international court. The ECHR did not consider the cassation and supervisory complaints as effective judicial protection, since they had no right to make a new decision. Now they can, according to the new reform, change the procedure for applying to Strasbourg. Today you need to get to the Russian Supreme Court before filing a complaint with the International Court of Human Rights.