On 11 March, the Venice Commission of the Council of Europe (VC) ruled that Russia must change its law on the Constitutional Court as it relates to allowing the Court to decide on the unenforceability of a European Court of Human Rights (ECHR) judgement.
You will recall that the amendments made to the Federal Law «On the Constitutional Court of the Russian Federation» came into effect on 15 December 2015. The Constitutional Court of Russia decided that the provisions of the Russian Constitution take precedence and therefore no other acts may take priority over them. The law details the procedure necessary should decisions implemented by international bodies violate the Constitution of the Russian Federation. Under this new law, the bodies that must implement the decisions of international courts have been granted the right to ask the Constitutional Court of the Russian Federation whether implementing the decision would be in violation of the Constitution. Should the Constitutional Court of the Russian Federation find that it would in fact violate the Constitution, it would then declare the decision «unenforceable». And should the Constitutional Court of the Russian Federation make such a ruling, then any actions (acts) aimed at implementing the international body’s decision cannot be started or carried out in the Russian Federation. Period.
In opposition to this, the Venice Commission has stated that the right adopted by the Constitutional Court of the Russian Federation to rule on the «unenforceability» of international decisions, including ECHR judgements, is incompatible with Russia’s international and legal obligations, «because such empowerment may result in preventing the execution of international decisions in any manner in the Russian Federation».
But here is the most important thing. According to the VC, the inability of the Constitutional Court of the Russian Federation to remove contradictions between the Constitution and international decisions does not absolve the state from its obligation to enforce international decisions. Unnamed lawyers of the Venice Commission are saying that it is the duty of all state bodies to reconcile provisions of the international treaties in force in Russia with the Constitution, for instance through interpretation or even modifying the Constitution.
The Venice Commission is not only calling for Russia to amend its law, but is also suggesting the specific wording that should be used by Russia’s state bodies. For example, it has suggested that articles be deleted according to which no measures will be taken to enforce an international decision declared by the Constitutional Court not to be in conformity with the Constitution. It also states that the Russian law should spell out the duty of the Russian authorities to find alternative measures for executing the international decision.
The Venice Commission has instructed us that, «the Law should make clear that individual measures contained in the European Court’s judgments, such as payment of just satisfaction, may not be the object of an assessment of constitutionality».
But what actually is the Venice Commission that is telling Russia how it should amend its laws?
The Venice Commission is the familiar name given to the European Commission for Democracy through Law, so-called because of the city in which it holds its meetings. The VC was created in 1990 shortly after the fall of the Berlin Wall and played an «important role in the adoption of constitutions by Eastern European countries that comply with the standards of European constitutional heritage». It is therefore an instrument for the legal absorption of Eastern European countries by the Euro-Atlantic community.
Initially, the commission consisted of a total of 18 lawyers. Now, however, the VC has 60 members and these are not just from member states of the Council of Europe (of which there are 47), but also from non-European countries like the US, Chile, and even territories whose governments have absolutely nothing to do with international law (such as Kosovo).
Worse still is the fact that the Venice Commission is not just made up of international lawyers, but also certain «independent experts who have achieved eminence through their experience in democratic institutions or by their contribution to the enhancement of law and political science». Who these people are exactly is unknown. In any event, among those telling Russia to amend its legislation are people without any kind of legal training such as the deputies of national parliaments and high-ranking officials.
And this is the amorphous, faceless commission declaring that «empowering the Russian Constitutional Court to declare international decisions, including judgments of the European Court of Human Rights, as ‘unenforceable’ is incompatible with Russia’s international legal obligations».
The Venice Commission has stressed that «the Russian Federation should have recourse to dialogue, instead of resorting to unilateral measures». I’m sorry, but dialogue for the sake of what? For the sake of Russian authorities being allowed to adopt a law? It’s absurd!
The trouble is that this commission, which meets in Venice, was set up as an institution to exert external influence on the legislative process in states accepted into the European family.
So the Commission wants a dialogue? Well Russia is fully capable of responding to its suggestion that Russian legislation should be amended. The rule of law is the basis of the legal system at both the national and international levels and courts interpret the law. Russia fully complied with this principle when it adopted its new law granting the Constitutional Court of the Russian Federation the right to recognise judgements by the European Court of Human Rights as unenforceable. But attempts by an extra-judicial body to dispute a law adopted by a legislator as part of his sovereign authority are violating the principle of rule of law.
The actions of the Venice Commission are logical in a way, since the commission does not provide for the concept of state sovereignty for a certain group of states.
While the European Union was intended as a supranational organisation from the very beginning, the Council of Europe only started to undergo such a transformation at the beginning of the 1990s. The practice is not new. In the 1960s, neo-colonial control over former colonies was achieved by ‘helping’ the new independent states draw up their constitutions. Today, the Council of Europe’s transformation from an international to a supranational organisation is virtually complete. The reformed European Court of Human Rights is playing a major role in this process, but the Venetian Commission is performing a secondary role as a department of legal diktat in a model of global governance.
