Russia v ECtHR: protecting national identity using constitutional brakes

This paper builds heavily on Anchugov and Gladkov prisoner voting case – the Russian Constitutional Court’s refusal to implement a decision of the European Court of Human Rights (ECtHR) declaring prisoner voting ban contrary to the universal suffrage since the Constitution explicitly prohibited prisoner voting. This case is a result of Russian national measures designed to strike a balance between protecting the Russian Constitution and respecting the ECtHR rulings. Russia has installed a system of constitutional brakes with regards to the ECtHR decisions – if a ruling contradicts the Constitution it is impossible to implement. The presentation will compare Russian approach to similar constitutional brakes in the UK (Chester and Pinnock cases) and Germany (Görgülü decision). Even though they share some features it will be argued that Russia went further than these systems in subverting the ECtHR’s reach by relying on all and not some fundamental national legal rules (unlike the UK) and asserting state sovereignty rather than pushing for alternative rights protections (unlike Germany). This is one of the reasons why Russia’s refusal to follow the ECtHR decisions can be construed as illegitimate together with different political and legal context. Still the paper will argue that Russia’s answer was the only possible way to resolve the conflict between national identity and international obligations and hence can be regarded as a failure of international order as a whole.