Problems of International Law Interpretation (on the Example of the Convention for the Protection of Human Rights and Fundamental Freedoms) in the Light of the ECHR Judgment in the Case of K. Markin

Vorontsova Irina V., Candidate of Law, Associate Professor, Civil Procedure Department, Saratov State Law Academy, Saratov, Russia

This paper addresses the problem of binding decisions of the European Court of Human Rights on the interpretation and application of the Convention and the Protocols thereto in the light of judgments of the European Court of Human Rights from December 6, 2013 in the case of K.A. Markin The features of the hierarchical system and the ratio of international and national legislation are analysed in the light of conclusions made by the Constitutional Court of Russia . The author comes to the conclusion that the events occurring in the legal fi eld are a mixture of trends in the development of international law. According to the author, the elements of fragmentation are observed.

Key words: judgments of the European Court of Human Rights, international law, the Constitutional Court of the Russian Federation, sources of civil procedural law, fragmentation.

By ratifying the Convention for the Protection of Human Rights and Fundamental Freedoms, the Russian Federation recognized the jurisdiction of the European Court of Human Rights (ECHR) binding for   interpretation, application and consideration of the Convention and its Protocols in cases of alleged violation of the provisions of these treaty instruments by RF (the Russian Federation)[1].

B.S. Ebzeev estimates the federal law on ratification as a transformative act according to which not only the Convention of 1950, but the case law of the European Court of Justice established in the process of its interpretation and application are  imputed  as mandatory for every law enforcer in Russia[2].

Paragraphs 10 - 15 of the Resolution of the Plenum of the Supreme Court of RF of October 10, 2003 No. 5 "On Application of the Universally Recognized Principles and Norms of International Law and International Treaties of RF by the Courts of General Jurisdiction"[3], paragraph 4 of the Resolution of the Plenum of the Supreme Court of RF of December 19, 2003 No. 23 "On the Judgment"[4], the Preamble and paragraphs 1 and 9 of the Resolution of the Plenum of the Supreme Court of RF of February 24, 2005 No. 3 "On Judicial Practice In Cases of Protection of Honor and Dignity and Business Reputation of Citizens and Legal Entities"[5]  indicate the need to apply the legal positions of the European Court of Human Rights. All that would seem to give grounds to consider the ECHR judgments as a source of civil procedure, but intensive discussions among practitioners and academics show the opposite.

It is difficult to discuss this question without a detailed study, so let us assess the application of the ECHR judgments in the light of contemporary social and political processes. We note with regret that decisions of the supranational Court are becoming increasingly politicized and quite often their use reflects a general problem of the system of international relations, which is expressed in the conflict of interests to protect human rights and freedoms and to ensure national sovereignty.

The collision is in acceptable application of international law interpreted by the European Court of Human Rights to a specific case in non-compliance with national law and also in the establishment of such a contradiction. First of all, the rule of international law should not contradict the Constitution of RF. According to T.M. Pryakhina, the criterion of the constitutionality of an international treaty (and the Convention in its legal nature is an international treaty) is its compliance with national interests of Russia enshrined in the Fundamental Law. The content of interests of individuals and the society is included in internal affairs of the state covered by the principle of noninterference, and the state guarantees protection of interests of these groups[6]. For a long time after the ratification of the Convention, the situation of its contradiction to the Constitution was difficult to imagine, because an international treaty ratified by the Russian Federation complies with it a priori. There was no mechanism of constitutional review. Thus, Paragraph 3 of the Determination of the Constitutional Court of  July 3, 1997, No. 87-O on the request of N.V. Grigorieva, the judge of  Moscow Regional Court, states:

"The Constitutional Court of the Russian Federation is not entitled to either fill the gaps in the legal regulation or solve the problem of whether the international legal act can be applied to a specific case if any inconsistency is found in the domestic law - it is the responsibility of courts of general jurisdiction"[7].Two decades passed and, the situation has changed dramatically after the Decree of the ECHR in the case of K. Markin. The uniqueness of the case is that the decisions of the Constitutional Court have never been opposed to the ECHR case-enactments. Verifying the constitutionality of the rules under which K.A. Markin, while doing his military service on the contract, was denied child-care leave, the Russian Constitutional Court based his decision on the grounds of National Defense and State Security and admitted that the provisions contested by the applicant did not contradict the Constitution of the Russian Federation[8]. As a result of the complaint filled by K.A. Markin, the European Court of Human Rights recognized the violation the applicant's right to private and family life (Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms), as well as discrimination based on gender. National legislation does not interfere with providing a child care leave for women carrying military service in the same position. It is important to note the fact that two decisions of the ECHR were made on this case[9].

The first ECHR decision of October 7, 2010, which presumes bringing Russian legislation, previously subjected to inspection for compliance with the Constitution of the Russian Federation, in the condition consistent with the Convention, presented damage to domestic law. The ECHR had wrongly assumed that the decision of the Constitutional Court of the RF discriminates military men in relation to military women, and is not reasonably justified[10] (10). V.V. Lapaeva made a fair point that the problem concerning national sovereignty is not a conflict between the interpretation of the Constitution of the Russian Federation and the European Convention for the Protection of Human Rights and Fundamental Freedoms by authorized courts; it is the need to use a legal precedent of the ECHR as a basis for the transformation of legislation contrary to the legal position of the Constitutional Court of the Russian Federation[11] as well as the prevalence of individual interests over public interests[12]. These manifestations reflect the crisis of the modern system of international relations in general.

  In response to this, the Government of the Russian Federation pointed to the wrong reference of the applicant to Article 14 in conjunction with  Article 8 of the Convention which do not guarantee the right to parental leave or benefits in connection with this child care leave and made an attempt to justify it as a threat to national security.

In  its turn, the Grand Chamber of the ECHR passed the second ECHR judgment in relation to K.A. Markin. In this decree, the European Court of Human Rights has refrained from direct normative control and evaluation of the position of the Constitutional Court of the Russian Federation on the case, and shifted the center of gravity on the consequences of applying this decision in the applicant's situation. V.D. Zorkin emphasizes the compromise found by ECHR which was expressed in the possibility, according to the Grand Chamber of the European Court of Justice, to provide a three-year parental leave to all military personnel carrying out their duties on the support staff positions[13].

The described case is unusual  for the ECHR in terms of the argument. According to A. Nussberger,  the ECHR judge, when considering  important cases, the Grand Chamber proceeds from on  international treaty law, international soft law and comparative analysis of legislation of the participating States if there are  solutions offered by national and international law, based on a consensus regarding standards of human rights.  In interpreting international treaties, they take into account subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation (Paragraph "b" p. 3 Art. 31 of the Vienna Convention on the Law of Treaties)[14]. In the case of K.A. Markin, the consensus in understanding the gender equality in the professional work and family life was not reached, but the very question about it affected the interests of national security. In this sense, the trends of unification of the legislation and law application encountered certain restrictions.

For the sake of justice, we should note that some authors are not inclined to dramatize the event. For example, I.Puzanov  sees no conflict in the decisions made in relation to K.A. Markin. According to his opinion, the legislation of the Russian Federation recognized by the Constitutional Court of the Russian Federation Constitution as conforming to the Constitution of the RF, contravene the Convention  that does not negate their conformity to the Constitution, but he sees no possibility of their application because of the contradictions to the rules of international law contained in the Convention with which Russia has to comply. With such a dualistic approach  that does not offer options to resolve the conflict and create prerequisites  for existence of "dead" rules, the only valuable conclusion is that the practice of the European Court extends the protection of human rights and freedoms to  Russia and provides more freedoms than the Russian authorities are ready to provide[15].

The stumbling block was the opportunity to review the decision of the military court of first instance in the new circumstances that found against  K. Markin. The Presidium of the Leningradski Military District Court, to which  the appeal had been transferred together with the case for consideration,during the hearing suspended the proceedings and made an inquiry to the RF Constitutional Court on the constitutionality of Paragraphs 3.4, Part 4 of  Article 392 of the Civil Procedural Code of the Russian Federation in conjunction with Article 11 of the Civil Procedural Code of the Russian Federation.

According to the inquiry, these rules contradict  Article 15 of the Constitution of RF to the extent that they admit the revision of a court decision that came into force in the presence of opposing legal positions of the RF Constitutional Court and the  ECHR concerning the conformity of national legislation applied in the case with the provisions of the RF Constitution and the Convention for  the Protection of Human Rights and Fundamental Freedoms.

The Constitutional Court of the Russian Federation in its decision of  December 6, 2013, No. 27-P acknowledged that the contested legal provisions do not contradict the Constitution of the Russian Federation, as they do not prevent the court of general jurisdiction to begin a new proceeding  to  revise the judgment that came into force under new facts in connection with the application of the citizen, whose complaint to the RF Constitutional Court has been recognized as inadmissible.

A new factor is the establishment, by the ECHR, of violations of the Convention for the Protection of Human Rights and Fundamental Freedoms when considering this case.

However, the following conclusion of the Constitutional Court of the Russian Federation should be considered as the most important in building a hierarchical system and the ratio of international and national legislation. If a court of general jurisdiction finds it impossible to execute decision of the European Court without finding the regulations examined previously by the Constitutional Court of the Russian Federation unconstitutional, the court has to suspend the proceedings and request the RF Constitutional Court to check the constitutionality of these rules[16].

 Fragmentation of International Law. The Institutional Component.

Thus, a specific mechanism is formed, and it has repeatedly been used to examine rules  as to  their conformity with the Constitution of the Russian Federation and the Convention for the Protection of Human Rights and Fundamental Freedoms, which is a "superstructure." Without assessing prematurely a step proposed by the RF Constitutional Court about the hidden control over the execution of the ECHR decisions, since this aspect needs further research, which will be made later in this paper, we will analyze the situation from a position of political and legal processes in the system of international relations.

So, as it was mentioned above, the decisions of the European Court of Human Rights are binding for the government that has ratified the Convention for the Protection of Human Rights and Fundamental Freedoms. The example with the case of K.A. Markin reveals enforcement problems both in the field of substantive and procedural law in the context of conformity with international legal standards. However, the events taking place in the legal field have much greater significance than just finding a compromise between positions of domestic and international justice. It is not easy to describe this phenomenon from the point of view of international law, since it represents a symbiosis of its developmental trends. It has some elements of fragmentation. Fragmentation  is the emergence of norms and decisions in some areas of international law and practice of international judicial and quasi-judicial institutions that are contrary to standards of other branches of international law, or those that do not coincide with previous decisions of the above-mentioned institutions[17].

As it was explained by R. Sh. Davletgildeev, fragmentation covers regulatory, institutional, and regional components. Institutional problems are associated with jurisdiction and competence of various institutions which apply international legal norms and their hierarchical relations inter se[18]. In general, we are talking about international competition of enforcement authorities whose jurisdiction in law application on certain points coincides.

In the area of legal proceedings, it is common to study institutional problems of fragmentation of international law resulting from contradictory interpretations of the same rules by international courts.

Regional and Regulatory Components of Fragmentation.

The regional component takes into account the fact that a variety of countries generate a trend towards regionalism in the area of human rights, although we should talk about universal values, as well as about interaction of common and special law and the principle of subsidiarity. The principle of subsidiarity means sharing responsibility for respect and protection of human rights and freedoms between the State authorities and the European Court of Justice, for effective implementation of the Convention. It means that provisions of the Convention can be applied in a decentralized way, with recognizing  national independence and without imposing uniformity. Alongside with  the principle of subsidiarity,   Protocol  No. 15 k  of the Convention formalizes  principles of discretion and efficiency, which means the balance of the will of the state to protect human and civil rights, on the one hand, and strict control of the European Court over the execution of their precedents, on the other hand[19].

The dynamics of growth of the regional approach is reflected in the change of priorities in negotiation of international legal agreements on judicial and quasi-judicial interpretation, the adoption of acts of "soft law", the increasing role of the "integration" law[20]. "Soft" law includes resolutions, declarations, communiqués, and recommendations of various international organizations whose provisions are not legally binding but are advisory in nature. Despite proposals to incorporate norms of "soft law" into national legislation to make them mandatory, courts use them in conjunction with international law to strengthen legal arguments of their legal positions, to interpret domestic law and  to fill gaps[21].

No consensus is observed in understanding the regulatory fragmentation of international law. Fragmentation is associated with appearance of specialized and autonomous systems of norms, institutions and spheres of legal practice[22]. Nowadays, scientists ascertain the existence of systems with autonomous legal regimes, as well as of  regulatory subsystems specialization of which deepens as they progress[23]. According to another position, the fragmentation was typical for international law from the very beginning and was explained by the absence of the unified legislative body, the presence of separate legal regimes, the development and expansion of the normative content of individual branches, competing regulation of homogeneous issues[24]. The reasons for fragmentation also include the lack of centralized institutions that ensure uniformity and consistency of legal rules; parallel regulation of one and the same issue on the universal or regional level; competitive rules[25]. In accordance with a slightly different approach, the fragmentation of international law is the result of conversion of functional differences in legal management - from the national to the international scale, that is, international law reflects differences in the fields of domestic law that can produce their own regulatory regimes capable of competing with each other[26]. Thus, there is no clear definition of the fragmentation of international law, but for the purposes of this study   understanding the nature of this process is sufficient.

Civil proceedings are governed by provisions of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which ensures the right for a fair trial.  The imperative rules, ranked as international standards of justice obligatory for operation, do not directly follow from this rather concise statement of the provision. The disclosure of their nature occurs through the interpretation of these rules by the European Court of Human Rights on the basis of systematic violations committed by national courts in considering   cases and identified in connection with the applications of those persons whose right to a fair trial was violated in some  way. The circle of vices of the Russian legislation and practice in the field of civil procedure is expanding rather quickly due to the interpretation of the provisions of Article 6 of the Convention by the European Court of Human Rights. Corresponding actions of Russian authorities towards changing the civil procedural law in the direction of bringing it in line with international requirements remain within the framework of the process of law adaptation for a certain time, i.e. penetration of international law and international legal experience into the national legal system, taking into account its readiness and adaptation to innovations[27]. At the same time, the formation of an international regulatory complex, including the norms of the Convention for the Protection of Human Rights and Fundamental Freedoms, and also binding precedent decisions of the ECHR which regulate legal relations for review and settlement of civil cases by national courts should be seen as an expression of the fragmentation of international law. This phenomenon was revealed to the full in collisions in the interpretation of related provisions of Articles 8 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms by international and national enforcers, as well as in the escalation of conflict between the positions of the European Court of Human Rights and the Constitutional Court of the Russian Federation in the case of K.A. Markin. Despite the fact that there is no "security interests” confrontation of views of two international judiciary authorities in applying international law but between the supranational court and the national court , it is a consequence of non-identical interpretation of universally shared values, such as gender equality and respect for family life.

However, elements of fragmentation of international law are not confined to this. To study the problem of application of the ECHR orders as a mechanism for  interpretation of the Convention for Human Rights and Fundamental Freedoms would mean to narrow the scope of the study for no good reason. The Decree of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013 No. 21 "On the Application of the Convention for the Protection of Human Rights and Fundamental Freedoms of  November 4, 1950  and the Protocols thereto by Courts of General Jurisdiction " states that in order to avoid violation and limitation of rights and freedoms, the legal position of the ECHR must be considered not only in relation to the Convention and its Protocols, but also to other international agreements of the Russian Federation[28]. This rule corresponds to Paragraphs 3  of Article 31 of the Vienna Convention on the Law of Treaties of May 23, 1969[29]. On the one hand, the European Court of Human Rights is given the status of a universal body with the power of legal interpretation of norms of international treaties; on the other hand, an indirect form of perception of international law by states-participants in international relations is created. Regulation of legal relations emerging during consideration and resolution of civil cases based on the position of the ECHR becomes a specialized sphere of ​​legal practice. Provisions of international law interpreted this way claim to be the autonomous "judicial law" for the countries of the European Union, an independent legal regime.

The outcome of K.A. Markin’s case, expressed in coordination of judgments concerning the enforcement of the ECHR judgment, the possibility of a retrial on newly discovered evidence, and mainly the establishment of constitutional control over the standards that have been examined by the international judicial body leads to certain conclusions. Interference of the international judicial body in the area of state sovereignty, as the Russian authorities regarded the ECHR decision in the case of K.A. Markin, impeded its direct execution. Multiple stages of screening authorities at the national and international level, formalized by the Constitutional Court on December 6, 2013 No. 27-P, indicate that the last word on the issue of cases review under the new circumstances can be left to the Constitutional Court of the Russian Federation. Thus, the rules of international "judicial law" were subjected to defragmentation from the State - party to the Convention for the Protection of Human Rights and Fundamental Freedoms. Judging by the events taking place in our country and around the world, this case will not be a the on one but will generate a trend.

In this light, the Chairman of Central Election Commission Vladimir Churov, speaking at the IV International Legal Forum in St. Petersburg, criticized the decision of the European Court of Human Rights on permitting convicts serving their term in prisons to vote, with the appointment of election commission members, as interfering with  internal affairs and the state sovereignty of the Russian Federation[30]. Despite the fact that these regulations of ECHR do not directly affect legal proceedings, there has been willingness of national authorities to establish limits for the rules of international law. If you expand the range of observation, you will find some imbalance in the system of international relations as a whole: in the light of the Ukrainian events, the demands for peaceful settlement of conflicts, while all respect to national sovereignty, are ignored, whereas the Russian national sovereignty in the sphere of  civil jurisdiction is being questioned. Each time the denial of principles of international relations in favor of the interests of the strongest states and private sovereignty have led to a crisis and a war.

The existing realities, the complicated situation in the world, the departure from  voluntary implementation of international commitments by individual states require further development of the system of international law  aimed at its effective harmonization with the concept of state sovereignty, the definition of the amount of state sovereignty[31].

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