A Rubik’s Cube from the Russian Constitutional Court

Russian Constitutional Court file photo

(Institute of Modern Russia – imrussia.org – Ekaterina Mishina – December 30, 2013)

In December, the Constitutional Court of Russia issued a ruling in the Markin case that was supposed to settle the question of Russia’s obligation to implement decisions of the European Court of Human Rights on its territory. IMR Advisor Ekaterina Mishina, a prominent legal scholar, notes that the Constitutional Court has dodged the principal question­but still made sure to show “who is the boss.”

Many Russians anxiously awaited the ruling of the Constitutional Court that was declared and immediately went into effect on December 6, 2013. We were anxious not only because we sympathized with Konstantin Markin­a military serviceman who, being a divorced father of three minor children, was denied parental leave to look after them­but also because of the broader implications of his case. From the very beginning, his experience seemed to contradict Article 61, Part 1 (Equality of the Parents’ Rights and Duties) of the Family Code of the Russian Federation, which stipulates that “parents shall enjoy equal rights and shall discharge equal duties with respect to their children.”
. Furthermore, it didn’t look good in view of Article 59, Part 1 of the Russian Constitution either. On the one hand, according to the constitution, defense of the motherland is the duty and obligation of every citizen of the Russian Federation. On the other hand, the federal law puts citizens who assume an honorable constitutional duty (serving in Russia’s military) at a disadvantage compared to other citizens. It seems that it would be more logical by far if, on the contrary, defenders of the motherland who suddenly become single fathers were granted some benefits or privileges. In reality, nothing of the sort happened: lawmakers thought differently, and the Russian Themis showed Markin no mercy.

The Constitutional Court demonstrated little understanding for Markin’s difficult situation and, on January 15, 2009, it rejected his applications under ruling #187- – , which stated that the Constitutional Court had found no violations of the applicant’s constitutional rights. It also stated that, considering the “rather limited participation of women in military service and the special social role of women associated with motherhood,” no violation of the principles of equality and freedom of man and citizen, in the context of equality between men and women, had taken place, which “corresponds to Article 38, Part 1 of the Constitution of the Russian Federation. Therefore, the legislature’s decision cannot be regarded as breaching the principles of equality of human rights and freedoms or equality of rights of men and women, as guaranteed by Article 19, Parts 2 and 3 of the Constitution of the Russian Federation.”

In contrast, the European Court of Human Rights (ECtHR), to which Markin turned after having exhausted all national means of legal defense, viewed his situation quite differently. The ECtHR Grand Chamber acknowledged that violations of Articles 14 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms had taken place in Markin’s case, in the form of gender discrimination and violation of his right to respect for private and family life. Furthermore, the ECtHR noted in its ruling in Konstantin Markin v. Russia that “by excluding servicemen from the entitlement to parental leave, [the Russian law] imposes a blanket restriction.”

Markin’s ordeal did not end there, though, and his case became increasingly high-profile due to the fact that it unfolded at a time of growing doubt over the ECtHR’s jurisdiction within the Russian Federation. As a result, in the fall of 2013, the case was resubmitted to Russia’s Constitutional Court for consideration­this time upon the request of the presidium of the Leningrad district military court. The public then adopted a wait-and-see approach, since, in light of the fashionable trend of telling Strasbourg to “get lost,” anything at all could happen. What’s more, since, according to Article 79 of the Law on the Constitutional Court of the Russian Federation, decisions of the Constitutional Court are final and not subject to appeal, its decision on the Markin case could very well become a point of no return. This, however, did not happen.

The Constitutional Court elegantly avoided all sensitive points and adopted a unique multifunctional ruling, particular provisions of which are able to satisfy supporters of different points of view.

Russian law prohibits the Constitutional Court from considering political cases for good reason, since few can compete with it in the area of politics. And the problem lies not only in the court’s fantastic ability to reflect even the smallest changes in political will. The neatness of phrasing in the Markin court ruling makes it not only a masterpiece of judicial casuistry, but also a political statement. The Constitutional Court masterfully avoided addressing the question of the executive force of the ECtHR’s decisions, which is not only the central issue of the request put forth by the presidium of the Leningrad district military court, but also a leading item on Russia’s political hit-parade of recent months.

Using specific procedural particularities of the Law on the Constitutional Court and the Civil Procedural Code, the Constitutional Court elegantly avoided all sensitive points and adopted a unique multifunctional ruling, particular provisions of which are able to satisfy supporters of different points of view. On the one hand, the ruling puts the supremacy of the constitution first. On the other hand, the question in its essence remains open, and the court pointed out that the potential for judicial defense has not been exhausted. The Constitutional Court also curtsied to the ECtHR by citing the March 22, 2012, judgment of the ECtHR Grand Chamber:

“The exclusion of servicemen from the entitlement to parental leave, while servicewomen are entitled to such leave, cannot be said to be reasonably or objectively justified… By excluding servicemen from the entitlement to parental leave on the basis of their sex only, the [corresponding] provision imposes a blanket restriction… [which] applies automatically to all servicemen, irrespective of their position in the army.”

The Constitutional Court also agreed with the Russian Supreme Court that “during consideration of the necessity of reviewing a judgment, the cause-and-effect relationship between the violation of the convention or its protocols established by the European Court of Human Rights and adverse consequences that the complainant keeps suffering is taken into account; the judgment is subject to reconsideration if the complainant keeps suffering adverse consequences of such a judgment and the just compensation granted by the European Court of Human Rights and paid to the complainant in accordance with Article 41 of the Convention or other funds, unrelated to the reconsideration, do not provide for the restoration of violated rights and freedoms (Article 17 of the June 27, 2013, resolution #21 of the Supreme Court Plenum of the Russian Federation ‘On the use by ordinary courts of the November 4, 1950, Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols.’).”

This was supposed to make everyone happy. The decision handed down by the court was no simple ruling, but rather a Rubik’s Cube that can be turned any way you like it: You want a green side? You got it. You want a red one? You can have that, too.

The extraordinary nature of the December 6, 2013, ruling of the Constitutional Court does not end there, though. It also contained a clear answer to the question of who’s boss. For those who cannot read court rulings, the official press release reads as follows:

“Decisions of the European Court of Human Rights constitute grounds for reviewing the civil case in conjunction with new circumstances. During judicial proceedings the court may come to a conclusion about the impossibility of implementing the decision of the European Court under the current Russian legislation. Since the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Constitution of the Russian Federation in essence share the same values, such a conclusion makes it necessary to determine the constitutionality of the provision contested by the ECtHR’s ruling. Such a question can only be solved by the Constitutional Court of the Russian Federation. If regular courts were to solve it by themselves, this could result in a different evaluation of the constitutionality of the same provisions of the law. Consequently, the supremacy of the Constitution of the Russian Federation itself would be challenged.” (Italics added.)

As a result, the case has come full circle, and the Rubik’s Cube has achieved the required pattern, with Russia’s Constitutional Court firmly positioned at the head of this mysterious geometrical figure.

It is hard not to admire the legal skills of those who wrote this ruling. President Vladimir Putin was also pleased and praised the Constitutional Court judges during his meeting with them on December 13, 2013: “In my opinion, the Russian Constitutional Court chose optimal solutions and very appropriate ones, as I have already said, from a legal point of view. You suggested an appropriate way of implementing decisions of the European Court, which will not lead to distortion of provisions of the Russian Constitution.” Good for you, dear judges. You masterfully avoided an open confrontation with the ECtHR and at the same time made it clear who the boss is and who will decide whether to implement decisions of the European Court of Human Rights on Russian territory.

Article also appeared at http://imrussia.org/rule-of-law/633-a-rubiks-cube-from-russias-constitutional-court bearing the following notice:

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