To execute or not to execute EctHR judgement should not be questioned… even before a Constitutional Court.
by Katerina SEREDA
Non – execution of the EctHR judgements is a worrisome trend, reinforced not only by the unreasonable delays in discharging the obligations under the art. 46 of the ECHR, but also by the direct preventing the implementation of the EctHR judgements by the Contracting Parties.
«When a decision of an international body interpreting the provisions of an international treaty concerns fundamentals of the Constitution, Russia has an exceptional right to deviate from enforcement of this decision», stated the Constitutional Court of Russian Federation in its judgement on January 19, 2017. It also deemed that ECHR judgement from 31 July 2014 in the case of “OJSC” Oil Company “Yukos” vs Russia” are “unenforceable”.
“No possibility to enforce” in Russian Federation, has become a new window of opportunity to avoid execution of the EctHR judgements. This window was opened by the 2015 amendments to the Federal Law on Constitutional Court of Russian Federation. Some countries like Azerbaijan started to follow the same path. In Azerbaijan, a Draft Constitutional Law, along the lines of the Russian Constitutional Court law, has been presented to the parliament during the 2016 spring session of the National Assembly. This worrisome trend is threatening the integrity and the effectiveness of the ECHR system, by giving the impression that the standards and rules can be followed and enforced at convenience and will.
On the matter
On 31 July 2014 in its final judgement in the case “OAO Neftyanaya Kompaniya Yukos v. Russia” (Application no. 14902/04) the ECtHR obliged Russia to pay the applicant company’s shareholders as they stood at the time of the company’s liquidation and, as the case may be, their legal successors and heirs the compensation for the pecuniary damage amounting to EUR 1.8 billion.
The ECtHR on the ground of its principal judgement on the case of 20 September 2011 concluded that the Applicant Company has suffered pecuniary damage as the result of violation of Article 1 of Protocol no.1 to the Convention for the Protection of Human Rights and Fundamental Freedoms because of retrospective imposition of fines for tax offenses for 2000 and 2001 (EUR 1.3 billion), 7% of the enforcement fee (EUR 0.5 billion), disproportionate nature of the enforcement proceedings – which shall be compensated under Article 41 of the Convention.
Based on the amendments to Federal Constitutional Law from Dec. 2015 on Constitutional Court of Russian Federation, the Ministry of Justice of Russian Federation excercised its right to challenge (question) the enforceability of the ECHR judgements before the Constitutional Court, and submitted its request dealing with the ECtHR judgment of 31 July 2014 with respect to the case “OAO Neftyanaya Kompaniya Yukos v. Russia” on two grounds:
a) the interpretation of the international treaty provided by the EctHR in this judgement, contradicts the norms and the principles of the Constitution of Russian Federation with the meaning of the interpretation of the Constitution of Russian Federation, provided by the Constitutional Court: the enforcement in respect of the compensation to the shareholders, liquidated in November 2007, results in violation of provisions of Articles 6 (Section 2), 17 (Section 3), 19 (Section 1), 35 (Sections 1 and 3), 46 (Section 3), 55, and 57 of the Constitution of the Russian Federation within the meaning of the legal positions of the Constitutional Court of the Russian Federation (Judgments of 30 July 2001 No. 13-П, of 14 July 2005 No. 9-П and etc.), the constitutional principle of justice and equality, including applications to an international body for the protection of human rights;
b) awarding the compensation to unidentified number of persons in whose respect the ECtHR did not find any violations and who were not a party before the EctHR, violates the Convention, that limits awarding the compensation only to a victim party Articles 34, 35, 41 of the Convention.
The Venice Comission in its interim (adopted March, 2016) and final opinion (June, 2016) On the 2015 amendments to the Federal Law on Constitutional Court, clearly concluded that the execution of the EctHR judgements is an unequivocal, imperative legal obligation is not a matter of the choice of the State which decisions to be implemented and which not. The execution of ECtHR judgement is, primarily, the obligation of the Government of the political/administrative nature. And, the Constitutional Court, if being involved risks becoming “the political arbiter of all controversies surrounding international decisions”. In both opinions the Venice Commission underscored that the review of the decision by the Constitutional Court cannot challenge the validity of the EctHR judgement – it shall be executed in accordance with the Art. 46 ECHR. Only the modality of execution may be at a State’s discretion. Individual measures of execution contained in judgments of the ECtHR, such as the payment of just satisfaction, may not be the object of an assessment of constitutionality. Furthermore, The Venice Comission stated that the provisions on “no execution measure may be taken if the Constitutional Court finds that a judgment is non-enforceable” (Article 1044 paragraph 2 and Article 106 part 2) is in direct conflict with Russia’s international obligations under the Vienna Convention on the Law of Treaties and Article 46 ECHR and should be removed.
Therefore, to execute or not to execute EctHR judgement is not the question… even if it was submitted before the Constitutional Court.