Wednesday, 16 December 2015

Conflicts with Strasbourg

Russia - Constitutional Court

The Secretary General of the Council of Europe (Mr Thorbjørn Jagland) has issued a statement regarding the stance recently adopted by Russia toward the European Convention on Human Rights.

"Regarding Russia’s new legislation on the Constitutional Court’s competence to examine possible conflicts between judgments of the European Court of Human Rights  (E Ct HR) and the Russian Constitution, the Secretary General of the Council of Europe, Thorbjørn Jagland, recalls that according to Article 46 of the European Convention on Human Rights all member states of the Council of Europe undertake to abide by the final judgments of the Strasbourg Court (to which they are a Party).

The Secretary General said -  “it will be up to the Constitutional Court of Russia to ensure respect for the Convention if it is called upon to act under the new provisions. The Council of Europe will only be able to assess Russia’s compliance with its obligations when and if a specific case arises. The compatibility of Strasbourg judgments with the national constitutions has been examined in some other member States.  So far, countries have always been able to find a solution in line with the Convention. This should also be possible in Russia."

A Bill signed into law by the Russian President (Vladimir Putin)
empowers the Constitutional Court of Russia to review rulings of international human rights bodies and to declare them “non-executable” – if the court deems they contradict the Russian constitution. The bill was drafted in response to the Constitutional Court’s July 2015 decision, which stated that judgments of the European Court of Human Rights cannot be implemented if they contradict Russia’s constitution - Human Rights Watch 10th December 2015

The Russian Federation has a written (formal) constitution and thus differs from the United Kingdom.

The UK doctrine of Parliamentary Sovereignty has the result that the UK Parliament could choose to legislate contrary to the European Convention though clear words would be required to achieve that result.  If Parliament did this, then the UK's international law obligation to apply the convention would be breached and any consequences would have to be determined via the Council of Europe.  Such legislation apart, Parliament has required domestic courts, so far as it is possible to do so, to read and give effect to primary legislation and subordinate legislation in a way which is compatible with the Convention rights - section 3 of the Human Rights Act 1998

In the UK, the courts are not bound by decisions of the E Ct HR but they are commanded by the Human Rights Act 1998 section 2 to "take them into account" and, in perhaps rare instances, the Supreme Court might decide not to follow a decision of the E Ct HR - see The Supreme Court and Europe.  The so-called "mirror principle" (Lord Bingham in Ullah, 2004) has certainly been modified and perhaps superseded - see, for example, Roger Masterman's article - The Mirror Crack'd.*

For example, in 2009 the Court declined to follow a decision of the ECtHR in R v Horncastle. This case raised the question whether there could be a fair trial when a defendant was prosecuted based on evidence given by witnesses who subsequently did not attend the trial in person and therefore were not available to be cross-examined by the defendant.

Lord Phillips said that although the requirement to "take into account" the Strasbourg jurisprudence would "normally result" in the domestic court applying principles that are clearly established by the ECtHR. "There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances, it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course".

In the event that a decision of the E Ct HR was contrary to some principle of English law considered to have constitutional importance then it seems possible that the Supreme Court could decline to follow the Strasbourg decision.  It would then be left to Parliament to decide what, if anything, should be done.

University College London Constitution Unit has published Supreme, Submissive or Symbiotic where the changed (or changing relationship) between domestic courts and the E Ct HR is discussed in some detail.  This document is well worth reading in full.

Whether the UK Supreme Court might develop into a form of "Constitutional Court" is under consideration by the government as part of its plans to reform human rights protection - see previous post Human Rights Proposals Delayed.


* R. Masterman, ‘The Mirror Crack’d’ UK Const. L. Blog (13th February 2013) (available at

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