Право/13. Международное право

V.M. Abdrashitov, Candidate of Law, Associate Professor

The federal state budgetary educational Institution of higher professional education

«Volgograd state university»

Present case law of the European Community and
national legislation of Russia

Taking into account the relevance Article 15 § 4 and Article 46 of the RF Constitution every citizen of Russia is guaranteed state’s protection of human rights and liberties as well as international bodies’ protection, but only after all domestic remedies have been exhausted.

Thus, in accordance with Articl4es 1, 13, 57 of the EC and Article 15 § 4 and Article 46 of the Constitution, the Federal Law "On ratification of the European Commission on Human Rights and Fundamental Freedoms of March 30, 1998”, the citizens of Russia has got the jurisdiction of the European Court of Human Rights and they can submit cases for any alleged violation of their rights as a result of the recognition by Russia ipso facto and without any special agreement the jurisdiction of the European Court of Human Rights which is obligatory on the interpretation and application of the Convention and its Protocols.

It should be pointed out that the development of close relations with the European Community and the transfer of international principles and norms to the Russia legal system have already produced some response. Thus, the Constitutional Court of Russia, the RF Supreme Court and the Supreme Arbitration Court of Russia in their enforcement regulations quote selected articles and provide the idea of international covenants and conventions, referring to the decision of the European Court as international instruments.

In 1998 [1], having ratified the European Convention on Human Rights of 1950, Russia not only took steps toward joining the EC but also it could to be called a state implementing the basic principles and humanitarian ideas for protecting human rights and freedoms through deep changes in legislation as well as gradually but persistently bringing national legislation into line with international legal standards on human rights. Since the ratification of the European Convention by the RF (the EC), more than 8,000 cases were brought to the European Court of Human Rights by the Russian citizens and some judgments were fully carried out. Among these applications there are a lot of complaints of Russia’s citizens on remedying some of the human rights and freedoms violations concerning property rights, security payments, process rights and the right to religious beliefs.

It should be mentioned again that under Article 15 § 4 and Article 46 of the Constitution every citizen of Russia is guaranteed state’s protection of human rights and liberties as well as international bodies’ protection, provided that claimants must exhaust their options for recourse within their domestic legal systems before turning to the international organizations [2, 3].

In accordance with Article 1 of the EC, having ratified the European Convention on Human Rights, the state takes a commitment of a dual character. It is better to consider this commitment under Article 57 of the Convention, which provides a specific ban on the parties’ general reservations. It is worth noting that in some cases the states have to take steps (as it happened to the RF) to improve the judicial system as well as law enforcement practices.

As international experience shows that it is much better to take these steps before joining the EC in order to avoid bringing claims to the European Court of numerous complaints on possible violations of the rights and freedoms of the Convention.

Secondly, under Article 1 of the EC, the ratifying the EC states should remedy all violations of human rights and freedoms which find defense in the European Convention on Human Rights.

It seems that the key point, while analyzing Article 1 of the EC, is to understand the term “under jurisdiction”. One the one hand, it limits the number of persons coming under the EC jurisdiction, on the other hand, this expression merely establishes the necessary link between the notion "everyone" and the EC member states (or if there is a particular case brought to the European Court of Justice, the link between the victim of a violation and a member –state which has violated human rights). That’s why the term “jurisdiction” used in Article 1 has become the issue under the EC supervising boards.

At the same time the European Commission and Court explained that the term “jurisdiction” [4] implies the state’s right to exercise its powers relating to an individual. Among the recent decisions of the European Court of Justice there was a judgment on Loizidu case, where the court clearly defined its position on the question of the jurisdiction when the Turkish government refused from its own jurisdiction over the actions of the armed forces invading the northern part of Cyprus. Without defining its position on the dispute between the parties, the Court made a decision about applicability of the provisions of Article 1 of the EC in this situation.

If we consider the present situation in Russia it should be mentioned that in compliance with Articles 1,6,13 of the Convention Russia is obliged to provide a system of effective techniques, mechanisms, procedures for protecting human rights and freedoms through creating on its territory free and fair independent courts which follow the principles of competition, equality of the parties, openness and publicity. It appears that it may be well achieved if we take into account the realities of modern Russia with its judicial and administrative reform under the way. It seems that the development of close relations with the European Community and the transfer of international principles and norms to the Russia legal system have already produced some response. Thus, the Constitutional Court of Russia in its decisions not only carries out the idea of the EC and the International Covenant on Civil and Political Rights of 1966, but it refers to the articles of these international instruments and the decisions of the European Court of Human Rights.
It can be proved the ruling of the Constitutional Court of Russia on June 27, 2000 upon the case of V.I. Maslov in accordance with Article 6 of the EC; the Court interpreted the article, regarding the European Court judgments relating to as civil as well criminal cases.
Nowadays, the European Court issued judgments against Russia; some of them were forced confirming a lot of human rights violations of Russia’s citizens to a fair and quick trial. This fact shows the need to develop this positive trend that is to keep pace with the modern, positive progress in world’s judicial systems ... the majority of European states, which follow the path of justice and law [5].

It is clear that the doctrine of European precedent "is growing and will produce" in the Court of Human Rights. It seems that it deserves greater attention and consideration, especially if Russian courts comply with specific precedents set in the European Court of Human Rights, the level and quality of justice in Russia will increase [6].

References:

1. Orders of the President of RF, February 13, 1996. No. 66-op // Collected Legislation of the RF, No. 8, 09. 02. 96. Section Three. P. 743.

2. Federal Law "On ratification of the European Convention on Human Rights and Fundamental Freedoms", 30.03.98. // Collected Legislation of the RF No. 14, 06.04.98. Section 1. Art. 1514

3. The European Court of Human Rights. Select cases . Vol.2, M., 2000. P. 442.

4. The European Court of Human Rights. Select cases. Vol.2, M., 2000. P.442

5. Barr H. Human rights and Justice in the European Court. N.Y., Mc. Fin Press, 2002. Р.58.

6. Topornin N. European Court of Justice on the threshold of XXI century // Rossiyskaya Yustitsiya, 1999. No. 8. P. 7.