IMPLEMENTATION PROBLEMS OF THE CONVENTION ON HUMAN RIGHTS
Rubrics: LEGAL EVENTS
Authors:
Type:
Article
Pages:
from 0
to 0
Status:
Published
Received:
27.11.2015
Accepted:
14.02.2018
Published:
02.12.2015
Language:
Russian
Keywords:
Human rights, implementation, European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights, judicial activism, European consensus, principle of subsidiarity, affirmative obligations, the Constitutional Court of the Russian Federation, cooperation of legal orders.
Abstract (English):
The article is devoted to the problems of implementation into the domestic law of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECPHRFF) and Convention-based decisions of the European Court of Human Rights (ECHR). The author notes that the complexity of the ECPHRFF provisions’ implementation process is caused by the lack of efficient legal remedies at the national level. Among the reasons for failure to execute or for the delay in execution of the ECPHRFF requirements and ECHR decisions, there are lack of coordination of actions between different government agencies and differences in approaches to ECPHRFF interpretation, political contradictions. The article justifies an important role of the Constitutional Court of the Russian Federation in improving the Russian legislation and lawenforcement by means of implementation of the ECPHRFF provisions and ECHR case law. The author underlines that the Constitutional Court of the Russian Federation activity is aimed at resolving two tasks: harmonization of the Russian legal system with the European legal framework and protection of own constitutional identity. The author considers the problem of “judicial activism” in the ECHR activity, that is aimed at extended interpretation of the ECPHRFF articles. The author pays special attention to the issue of application by the ECHR of the European consensus methodology which it used to determine the discretion of states in safeguarding conventional rights. At the same time the author points to the inconsistency of this concept in regard to the ECPHRFF basic principles. The author justifies the Constitutional Court of the Russian Federation position, in accordance with which ECPHRFF and the ECPHRFF-based decisions of ECHR do not override the priority of the Russian Constitution for national constitutional courts and the Russian legal system in those cases when the Russian Constitution is capable to ensure better protection of human and civil rights and freedoms. The author draws the conclusion that cooperation of the European and Russian legal orders is not possible in the context of subordination; it is necessary to establish a dialogue between the legal systems which is a guarantee of the all-European law development.
The article is devoted to the problems of implementation into the domestic law of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECPHRFF) and Convention-based decisions of the European Court of Human Rights (ECHR). The author notes that the complexity of the ECPHRFF provisions’ implementation process is caused by the lack of efficient legal remedies at the national level. Among the reasons for failure to execute or for the delay in execution of the ECPHRFF requirements and ECHR decisions, there are lack of coordination of actions between different government agencies and differences in approaches to ECPHRFF interpretation, political contradictions. The article justifies an important role of the Constitutional Court of the Russian Federation in improving the Russian legislation and lawenforcement by means of implementation of the ECPHRFF provisions and ECHR case law. The author underlines that the Constitutional Court of the Russian Federation activity is aimed at resolving two tasks: harmonization of the Russian legal system with the European legal framework and protection of own constitutional identity. The author considers the problem of “judicial activism” in the ECHR activity, that is aimed at extended interpretation of the ECPHRFF articles. The author pays special attention to the issue of application by the ECHR of the European consensus methodology which it used to determine the discretion of states in safeguarding conventional rights. At the same time the author points to the inconsistency of this concept in regard to the ECPHRFF basic principles. The author justifies the Constitutional Court of the Russian Federation position, in accordance with which ECPHRFF and the ECPHRFF-based decisions of ECHR do not override the priority of the Russian Constitution for national constitutional courts and the Russian legal system in those cases when the Russian Constitution is capable to ensure better protection of human and civil rights and freedoms. The author draws the conclusion that cooperation of the European and Russian legal orders is not possible in the context of subordination; it is necessary to establish a dialogue between the legal systems which is a guarantee of the all-European law development.
Keywords:
Human rights, implementation, European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights, judicial activism, European consensus, principle of subsidiarity, affirmative obligations, the Constitutional Court of the Russian Federation, cooperation of legal orders.
Human rights, implementation, European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights, judicial activism, European consensus, principle of subsidiarity, affirmative obligations, the Constitutional Court of the Russian Federation, cooperation of legal orders.
1. Resolution of Parliamentary Assembly 30 September 2015 No. 2075 “Implementation of Judgments of the European Court of Human Rights”.
2. Zor´kin V. D. Problemy realizatsii Konventsii o pravakh cheloveka. Vystuplenie Predsedatelya Konstitutsionnogo Suda Rossiyskoy Federatsii. URL: http://www.ksrf.ru/ru/News/Speech/Pages/ViewItem.aspx?ParamId=72.
