Constitutional Court judgment in “Markin’s case”
The conflict with Strasbourg Court is mitigated
A long-awaited Judgment of the Constitutional Court of 6 December 2013 № 27-П has been published. It concerns the review of constitutionality of the rules of Article 11 and paragraphs 3 and 4 of the fourth part of article 392 of the Civil Procedure Code of the Russian Federation in connection with the request from the presidium of Leningrad Circuit military court. This judgment is the final link in the chain of court decisions in thye so-called "Markin's case", in which a conflict emerged between the decisions of the Constitutional Court and the European Court on Human Rights (ECHR).
The legal issue in the case may be formulated as follows: how a court which has the task of reviewing a civil case on the grounds of emergence of new circumstances should proceed in case of there being two incompatible new circumstances, namely, contradictory legal opinions of the Constitutional Court of Russia and European Court of Human Rights as to whether applicable rules of Russian law are conformant to the Constitution of Russia, on the one hand, and the European Convention for the Protection of Human Rights and Fundamental Freedoms, on the other?
The Constitutional case came to the conclusion that if there is a conflict between legal opinions of the Constitutional Court and of the European Court of Human Rights as regards the assessment of legal rules subject to application in a particular case, such conflict raises the question of their constitutionality. If the position of the Constitutional Court has been expressed in its ruling, by which the application of petitioner has been dismissed on the grounds of inadmissibility, the ordinary court which would subsequently take the case in which such conflict arises may apply to the Constitutional Court with the request to review the constitutionality of the contested rules once again. The ground for such application may be final decision of the European Court as regards non-conformance of applicable rules to the European Convention. If, as a result of such new consideration, the Constitutional Court finds the rules in question to be conformant to the Russian Constitution, it is up the Constitutional Court itself to determine, within its competence, possible constitutional ways of realisation of the judgment of the European Court.
This judgment of the Constitutional Court apparently brings Markin's case to an end, but it does not rules out the possibility of conflict between the two courts: still worse, in the near future Russia will face the problem of implementation of a ECHR decision in the "case of Anchugov and Gladkov", where no less than a provision of the Russian Constitution itself was found by the European Court to be contradictory to the Convention.
ECHR decisions in "Markin's case":
Markin v. Russia, no. 30078/06, judgment of 7 October 2010
Markin v. Russia, no. 30078/06,Grand Chamber judgment of 22 March 2012