CONSTITUTIONAL FOUNDATIONS OF THE EXECUTION OF THE ECTHR JUDGMENTS IN THE LEGAL SYSTEM OF THE RUSSIAN FEDERATION

The article studies binding legal force of the ECtHR decisions in relation to the arising from the Constitution of the Russian Federation and the Convention for the Protection of Human Rights and Fundamental Freedoms requirement demanding execution of measures of individual and general character. The authors analyze the legal positions of the Constitutional Court of the Russian Federation regarding the binding nature of ECtHR judgments. The authors note that, in assessing the nature of the decisions of this Court, their influence on the Russian legal system, it is important to take into account the fact that the legal effect of its decisions is not limited only to decrees adopted in the cases on the appeals against the Russian Federation. The article emphasizes, the constitutional Court of the Russian Federation has never denied the role and importance of the ECtHR decisions in the Russian legal system, their commitment and the need of execution addressed to the Russian authorities of the individual measures, confidently and consistently perceiving the rights and freedoms of a person in the essential constitutional-Convention unity. The main difficulties of implementation or, as they say, domestication (domestication) of the Convention's provisions for Russia are connected not with the Convention itself and its interpretation in the decisions of the ECtHR. These difficulties are not sustainable and ambitious nature. Based on the analysis of legal positions of the Constitutional Court of the Russian Federation and the ECtHR, the authors come to the conclusion that the Russian Federation shall make all possible efforts for the execution of final judgments of the Strasbourg Court which, however, does not relieve Russian authorities from the unconditional compliance with the Constitution and which, in its turn, as a consequence, may hin-der the execution of such judgments in case of their contradiction to the Constitution of Russia.

force and execution of judgments") of the Convention for the Protection of Human Rights and Fundamental Freedoms, which imposes on the High Contracting Parties the obligation to execute the final judgment of the ECHR in any case to which they are parties (paragraph 1) and thus gives its decisions quality of res judicata. In conjunction with the fundamental general legal principle pacta sunt servanda, embodied in Article 26 of the Vienna Convention on the Law of Treaties, it would seem to rule out any hesitation about the binding nature or ECHR decisions.
The binding nature of ECHR decisions is also confirmed by Article 46 (part 3) of the Constitution of the Russian Federation which guarantees everyone the opportunity to co-responsible with the international treaties to international bodies for the protection of human rights and freedoms, if exhausted all available domestic remedies. It is clear that such treatment makes sense, if handed down decisions on them are recognized and enforceable; otherwise the promised right loses the real meaning and becomes merely a declaration.
It is important to bear in mind that without the binding nature of ECHR decisions full judicial protection is inconceivable neither in the Strasbourg Court nor in the Constitutional and Supreme courts of Russia, as well as in all other courts. ECHR has consistently held the view that a fair trial necessarily implies recognition of the binding force and execution of the judgment, without which justice would have lost its true purpose. According to the ECHR opinion, that right would be illusory if a Contracting State's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 para. 1 (art. 6-1) should describe in detail procedural guarantees afforded to litigants -proceedings that are fair, public and expeditious -without protecting the implementation of judicial decisions; to construe Article 6 (art. 6) as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention (see, mutatis mutandis, the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, pp. 16-18, paras. 34-36). Execution of a judgment given by any court must therefore be regarded as an integral part of the "trial" for the purposes of Article 6 (art. 6). Similarly, the Constitutional Court of the Russian Federation considers enforcement of judicial decisions "an integral part of the court trial". The Supreme Court of the Russian Federation determines the enforcement of judicial decisions as an integral element of the "trial". All this is indicate of the fact that the lack binding nature of judicial decisions weakens the very justice and brings it to unnecessary formalities, like a self-contained, empty bureaucratic procedures.
With regard to the obligation of the ECHR rulings the Constitutional Court has repeatedly drawn attention to the following. Firstly, the European Convention is an integral part of the Russian legal system, and therefore the competent authorities of Russia shall be bound by the decision of the ECHR handed down against Russia on the basis of the Convention's provisions on the complaint in respect of persons involved and within the specific dispute (case). Secondly, the implementation of measures envisaged by the ECHR should be carried out in accordance with Article 15 (part 4) of the Constitution of Russia on the basis of acceptance of this decision as prior over the application of enforcement of national laws. Third, the execution of final ECtHR judgments in cases against Russia in part fixing a violation of Convention rights of a person and to award him just satisfaction, do not deprive such a person the possibility to apply to the competent Russian court for review of a judicial act, give rise to the applicant's complaint ECHR. Fourth, the impact of the ECHR on Russia's legal system is not limited to its direct role in the protection of human rights and freedoms in individual cases; the interests of pan-European understanding and respect for human rights objectively determine the need and importance of its activities for the identification of structural deficiencies, including those related to the state of the national legislation, and suggest ways to address them, which imposes on the Russian Federation the duty of a thoughtfully and constructively respond to general actions (judgment of 26 February 2010 № 4-P, on December 6, 2013 № 27-P on July 14, 2015 № 21-P, et al.).
Assessing the nature of the Court's judgments and their impact on the Russian legal system, it is important to take into account the fact that the legal effect of its decisions is not only limited by resolutions adopted in cases of appeals against the Russian Federation. The decisions of the Strasbourg Court, adopted in cases involving other states, does not formally oblige Russia to execute them, but contain a summary of the positions of the ECHR concerning the interpretation and application of the Convention's provisions. The Russian authorities are unlikely to afford to remain indifferent to them, because it is possible that in cases involving Russia will conceive these positions effective in binding decisions. Besides the official and competent interpretation of the Convention itself demands respect, if the state participates in it. Ignoring them, the legal system of Russia would be on the path of self-isolation, pushing its legislation and law enforcement to participate in the "dynamic understanding" conventional standards of protection of human rights and freedoms, as they see the Strasbourg Court, which would have greatly complicated the coordination of national justice practices with European justice [ 6, c. 1-10].
The Constitutional Court of the Russian Federation has never denied the role and importance of decisions of the ECHR in the Russian legal system, their commitment and the need for execution addressed to the Russian authorities to the individual measures confidently and sequenceenforcement perceiving human rights and freedoms in the essential Constitutional-Conventional unity. This is how one can understand the position of the Court set out in particular in the Decision of 26 February 2010 № 4-P, where loyalty to the Russian constitutional justice is designed not only to the ECHR decisions in its operative part but also for the overall legal positions ( "precedents" ) of the ECHR and even of the general measures.
On accordance with the European Convention the ECtHR activity constitutes an additional measure of protection of human rights and freedoms as the main burden of compliance and enforcement of the authorities of States Parties and the national legal systems. The matter is not in fact that their loyalty to freedom and quality of protection are superior to international jurisdiction, that they are flawless, completely reliable and consistent in the performance of the human rights mission, but only in the fact that apart from this there is no one to deal within national boundaries even international courts. The rights and freedoms receive legal defense for quite some time, at least long before the establishment of international courts. Some nations, in North America, for example, stay away from international justice, and rely on their own which is of course imperfect, as, indeed, any justice, not excluding the Convention-European. It is no coincidence that Article 1 of the Convention focuses on the fact that it is the States parties who undertake to ensure to everyone within their jurisdiction the rights and freedoms set forth in this Convention. The Strasbourg Court has repeatedly pointed out this fact, considering that the state apriori have a "margin of appreciation» in relation to the choice of means and methods of ensuring and protecting the rights and freedoms protected by the Convention. This, of course, obliges to respect the uniqueness of the ECHR legal systems of individual states and to be very correct in the assessment of prevailing in their approaches to the legislature and, especially, the constitutional solution of various legal problems [7, c. 64-67].
Something in the interpretations and decisions, including those of conventional justice, sometimes seems to be a leading and well in advance, so distracted from the national reality and from the Convention itself, that it brings the other State to the hopeless "dissidence", where disagreement or unwillingness put the participant in almost pariah status, which either suffers in the Convention system grudgingly, or wait for unpleasant incidents, and is almost out of the Convention.
Of course, if the behavior was a participant is hopelessly inconsistent with the Convention's provisions and their authoritative interpretations, the explanations of such a behavior are not in conventional disloyalty. Maybe sometimes the conventional burden presented in interpretations, especially in the court, is too hard? It's not just a question of responsibility of the disloyal party but the question of enforceability of the Convention.
It is well-known that the assessment of the value of conventional norms of the ECHR is based on the principle pacta sunt servanda, by which States should in realize the provisions of the Convention, recognizing the binding nature of court rulings in cases involving them. In this case the Court considers that the Vienna Convention on the Law of Treaties (Article 27), prohibiting states to rely on its domestic law as a circumstance exempting them from the execution of international treaties, does not give even national constitutions any advantages on the European Convention: their highest legal force allows them only prevail inside their national law. From this position, the ECHR confidently insists that the provisions of the Convention extend to all acts and measures irrespective of their legal nature, and no part of the national law of the State party system is free from any conventional judicial review (judgment of 30 January 1998 in the case "United Turkey kommunistichekaya party (United Communist party of Turkey) and others against Turkey", dated March 2, 2010 on the case of "Al-Saadoun (al-Saadoon) and Mufdi (Mufdhi) against the United Kingdom", dated 12 September 2012 on the case of" Nada (Nada) against Switzerland "and others.).
Not all the states support this view. it Constitutional Courts of Austria, Germany, Italy, Lithuania, Turkey and other countries showed disagreement with the interpretation, where conventiontional and constitutional order represented in the relationship are expressed by the hierarchy [9, c. 18-21]. Sometimes these countries tend to follow the decisions of the Court in a very deliberate and careful conjunction with the national legal system, especially where it comes to its constitutional foundations. In particular, the Constitutional Court of the Republic of Lithuania in its Resolution of September 5, 2012 № 8-P in the case "On Compliance of Paragraph 5 (in the version dated 22 March 2012) Article 2 of the Law" On Elections to the Seimas "Republic of Lithuania Constitution" said that in cases where the legal regulation introduced an international treaty ratified by the Seimas, competes with the regulation laid down in the Constitution, the provisions of the international treaty do not take precedence in law enforcement; ECHR decision itself cannot be a reason to rethink the (correct) the official constitutional doctrine (its individual provisions). Such countries rarely come into the public debate on this issue, but hardly agree to give its decisions the absolute immunity, which would put them frankly above constitutional order.
The Constitutional Court of the Russian Federation in its judgment of 14 July 2015 № 21-P said that in the Russian constitutional realities neither the European Convention, nor, moreover, the acts of the ECHR cannot be free from the rule of the Constitution; being obliged to comply with its international treaties, including the Convention on the Protection of Human Rights and Fundamental Freedoms, the Russian Federation at the same time should ensure the supremacy of the Constitution in its legal system, which forces Russia to give preference to constitutional requirements and not to follow the ECHR judgment literally, if its implementation is contrary to the constitutional provisions, despite the fact that the Russian Constitution and the European Convention rest on the same basic values, rights and freedoms of man and citizen. The main difficulties of implementation or, «domestication» of the Convention's provisions for Russia are not associated with the Convention itself, but with its interpretation of the ECHR rulings. These difficulties are not of a sustainable nature and scale; twenty-five year history of activity of the Constitutional Court indicates that the Strasbourg Court in its decisions usually avoids direct clashes with Russian constitutional order and in most cases does not give reason to raise the question of the organization of their enforcement.
It is more complicated in situations when the ECHR actively uses such instruments, as "the right evolutive interpretation" binding of "European consensus", "the limits of national discretion", etc., and its provisions are in conflict -real or imaginary -with the Russian Constitution and the legal position of the Russian Constitutional Court. Using these instruments, the ECHR often actually replaces the interpretation of the provisions of the Convention with "pan-European" standards on the basis of the prevailing (pre-possessing) national practices. And although the Court is inclined to see in the European consensus mainly as an additional factor that affects the assessment of the limits of authorities of States Parties, the relation of such an extent with the ideas spread in some European countries, seems to be flawed. The number of such cases is very small, but they cause an increased interest in assessing the binding decisions of the Strasbourg Court. An illustration of this is the ECtHR judgments made in cases "Konstantin Markin v. Russia" (22 March 2012) and "Anchugov and Gladkov against Russia" (4 July 2013). In the first case the ECHR found the absence of right of the soldier-man on parental leave until the child reaches three years of age, despite the fact that this right is granted to female military personnel disproportionate and discriminatory. The Court considered that the withdrawal of men in the military, having the appropriate right, which is based on the mere basis of sex, and is automatically applied to all military personnel male, regardless of any circumstances (type of service, official position, the possibility of replacing and others), violates article 14 ("Prohibition of discrimination") in On December 6, 2013 the Constitutional Court, referring, in particular, a chronology of the Markin case, announced that the final decision of the ECHR in so far as ascertaining violation of convention rights of the applicant and to award him compensation, to be executed. The Constitutional Court observed that if the ECHR binds the breach of Convention rights with the provisions of the Russian legislation, it is not excluded that their constitutionality would be verified in the established order, if the courts reviewing the case, come to the conclusion that it is impossible to execute the decision of the ECHR without disqualification of the regulations, which the Constitutional Court had not previously found violating the constitutional rights of the applicant. Thus, whatever they say in various collections and publications on the "Markin case" [11, c. 127-137], the Constitutional Court did not declare or imply, either directly or indirectly, any denial of binding nature of ECHR judgments.
But in the case "Anchugov and Gladkov v. Russia" the Constitutional Court had to correct its previous position them, adapting to the solution of the new issues related to the execution of ECHR decisions. As you know, the ECHR has ruled to support its "evolutionary" case-law in the area of electoral rights, which have been first expounded at great variations in cases "Hirst v. the United Kingdom" (number 2), "Frodl v. Austria" and" Skoppola v. Italy"(number 3), considering that the non-participation of citizens, kept in prison upon conviction, in voting, provided by part three of article 32 of the Constitution, violates their right to participate in the elections of legislative bodies, as guaranteed by Article 3 of the Protocol № 1 of the Convention, since such a prohibition is absolute and continuous way cover all these persons. Along the way, the ECtHR has offered the Russian authorities to remove, the constitutional limitation of voting rights provided for in respect of all who is serving a sentence of imprisonment from the legal system. ECHR allowed Russia to decide if Russia fulfills it in "any form of political process" or in judicial interpretation.
Such a conflict of constitutional and conventional norms lies in the interpretation that the Strasbourg Court has given to Article 3 of the Protocol number 1. Such an interpretation does not follow from the conventional description of the commitments agreed by the Parties, and is a rather shaky proposition which has not been received in the interpretation, but after the creation of the unknown obligations. Part 3 of Article 32 of the Russian Constitution which in the opinion of the ECHR has set reprehensible prohibition is a complete definition of its normative content and a sample of unequivocal direct constitutional regulation. ECHR itself had to admit that this constitutional provision does not allow anything but the removal from the election of persons serving the court sentence in prison. The ECHR insists on the performance of his acts contrary to the Russian Constitution and requires to give priority to its judgments obtained in inclusively the free-evolutionary interpretation, over the Constitution of the Russian Federation. Russia did not incur such obligations when signing or ratifying the Convention, or subsequently, and has not entrusted the Council of Europe institutions to manage Russian constitutional destiny. The group deputies of the State Duma Right made a request to the Constitutional Court, where they were asked to check the constitutionality of Provisions in federal laws that oblige the Russian authorities to take action to fulfill the decisions of the Strasbourg Court. The applicants maintained that Russia cannot be linked to these measures, regardless of how they relate to the constitution and to the legal positions of the Constitutional Court of the Russian Federatsii. In its judgment of July 14, 2015 № 21-P the Constitutional Court found that the coexistence of European and constitutional orders is impossible in conditions of subordination, and only dialogue between the legal systems provides the basis of a proper balance. The ECtHR cannot ignore the basic elements of the constitutional identity of the fundamental rights and freedoms, as well as rules on the foundations of the constitutional system, guaranteeing these rights and freedoms; joint efforts can reduce the likelihood of conflict between the national (constitutional) and European (supranational) right, to optimize the effectiveness of the Convention's system of protection of the rights and freedoms of man and citizen, while maintaining the constitutional sovereignty. Even those who criticized this Regulation, still recognize that it has contributed to an adequate perception of the ECHR as a supranational body, which is not a superconstitutional court and has no impact on the prerogatives of the vertical constitutional judiciary [12, c. 162].
Based on these considerations, the Constitutional Court has considered it possible to conclude that if the decision of the ECHR handed down a complaint against Russia is based on the interpretation of the provisions of the Convention, leading to their contradiction with the Constitution, such a decision, within the meaning of Articles 4 (Part 2), 15 (part 1 and 4), 16 (part 2) Constitution and 79 cannot be executed.
The legal nature of this question with certainty requires its decision in constitutional proceedings; otherwise would contradict the status of the Constitutional Court of Russia (the Russian Federation Constitution, Article 118, part 2, Article 125) as the only cause of failure to the ECHR judgment can be recognized only by its contradiction of the Russian Constitution, which can be established or disproved by the Constitutional Court. On this basis, the Constitutional Court made a fundamental conclusion that public authorities, including the courts, which are responsible for the adoption of measures to implement the ECHR judgments are required to initiate in this regard constitutional proceedings in case of a reasonable doubt in its constitutionality.
The nexr notable step in the "dialogue" of constitutional and conventional jurisdictions became Decree of April 19, 2016 № 12-P on the request of the Ministry of Justice of the Russian Federation, where the Constitutional Court, in accordance with their legal positions has set the impossibility of execution of the decision of the ECHR in the case "Anchugov and Gladkov v. Russia" in terms of general measures in relation to such changes in the electoral legislation, which would allow to cancel the total limitation of active electoral rights of persons who are serving time in prison by a court decision that would mean a direct violation of the Constitution. This decision was the first court decision rendered by the Constitutional Court in the manner provided for in Articles 1041, 1042 and 1043 of the Federal Constitutional Law "On the Constitutional Court of Russian Federation", which the Court of Justice in accordance with the Federal Constitutional Law of 14 December 2015 № 7-FCL adopted in pursuant to the Decree of the Constitutional Court on July 14, 2015 № 21-P, has been endowed with the authority to hear cases about the possibility of execution of decisions of international bodies for the protection of the rights and freedoms.
The Constitutional Court has recognized the possibility of execution in the formation of the case "Anchugov and Gladkov v. Russia" in respect of the differential, proportionate and individualized restrictions on voting rights and, consequently, binding legislative power and judicial practice does not allow the imposition of imprisonment (and thereby limiting the right to vote in elections), does not meet the requirements of proportionality and fairness. In addition, the Constitutional Court also noted the fact that the federal legislator, realizing the criminal law the principle of humanism, is not denied the opportunity to optimize the criminal system of sanctions, including translate different modes of serving imprisonment in alternative forms of punishment, although related to the ECHR the interpretation of forced restriction of freedom, but do not involve restrictions of the prisoners' voting rights.
The Constitutional Court declined to assess the admissibility of such a method of execution in the case of "Anchugov and Gladkov v. Russia" which would consist of non-compliance and, especially, in the change (revision) of the Constitution. This "silence" has a clear meaning, and then, of course, is not the mere absence of a special law regulating the revision of the Constitution (Part 2 of Article 135). The main thing is that the Constitutional Court is obliged to provide legal protection of the Constitution, and not to look for the flaws and how to change it. If otherwise, the constitutional justice would be gone from its true purpose and would have questioned the refereeing in the oath, by bringing a judge took office, promising to obey "only the Russian Constitution, nothing and no one else".
It is interesting to note the results of the sociological service of the St. Petersburg State University at the request of the judge-rapporteur of the Constitutional Court's conclusion on the possibility of execution of the ECHR judgment in the case "Anchugov and smooth against Russia": a nationwide survey 82% of respondents expressed a negative attitude towards the abolition of the Article 32 (part 3) of the Constitution of the Russian Federation of the ban and providing the active vote right for citizens contained in custody under a court sentence.
Having not agreed with too flexible interpretation of paragraph 3 of Article 32 of the Constitution of the Russian Federation to fulfill the decision of the ECHR in "harmony" with its plans in the case "Anchugov and Gladkov v. Russia", the Constitutional Court did not discuss or even mention the possibility of revision of the Constitution. It is known that not all the good intentions lead to good, and it may be, it is important to value not only the "Convention's" plans for total reconstruction, so as not to jeopardize the deformation and destruction of the constitutional order, which is functioning well in Russia [13, c. 4-12].
In conclusion, we note again that guarantee of the right to judicial protection, as well as for an appeal to the bodies of supranational jurisdiction, also according to the Convention on Protection of Human Rights and Fundamental Freedoms, the state assumes the obligation to make every effort to organize the execution of the ECtHR judgments. Derogation from the obligation of its provisions is unacceptable in any case, when they allow themselves to perform and, in particular, do not force the parties to the Convention renounce its constitutional foundations or inexcusable their chances. It seems that the above circumstance does not remain without consideration of the Constitutional Court of Russia when considering the incoming October 13, 2016 in its address request of the Ministry of Justice of the Russian Federation, in which it raised the question of the impossibility of performance in accordance with the Constitution of the Russian Federation, the ECHR judgment of 31 July 2014 to case "Oil company" Yukos "against Russia" in terms of payment of the amount of compensation awarded to the shareholders of the company.