How changes to the Constitution can affect rallies and complaints to the ECHR: the opinion of lawyers

On January 15, the President announced that he was going to change the Constitution. Among the changes there are those that directly relate to the work of OVD-Info. The first is the priority of Russian laws over international ones: will this affect the implementation of the decisions of the ECtHR? Secondly, if local self-government is subordinated to the state, will this change the procedure for coordinating rallies? These questions are answered by OVD-Info lawyers Aleksandra Chilikova and Denis Shedov.

What Vladimir Putin said:

“Indeed, I believe that the time has come to make some changes to the Basic Law of the country that directly guarantee the priority of the Russian Constitution in our legal space.

What does this mean? This means literally the following: the requirements of international legislation and treaties, as well as decisions of international bodies, can operate on the territory of Russia only to the extent that they do not entail restrictions on the rights and freedoms of a person and citizen, do not contradict our Constitution.

Alexandra Chilikova, coordinator of the ECtHR program OVD-Info:

To be honest, it's not clear what that means. Because you don't really need to change anything. In paragraph 4 of Article 15 of the Constitution, which proclaims the priority of international law, everything is extremely incomprehensible anyway. This article is interpreted by lawyers in different ways.

One group of lawyers believes that Part 4 directly establishes the priority of international treaties over Russian legislation, which includes the Constitution. Another says that this part states that international treaties take precedence only over Russian laws and by-laws, but not the Constitution - the latter stands "alone" and has supremacy, by virtue of the principle of sovereignty

Therefore, it is not clear why the president spoke specifically about the Constitution. Not to mention that Article 15 cannot be changed, only the entire Constitution can be changed. It is included in the first chapter, "Fundamentals of the Constitutional System", Article 135 of the Constitution prohibits making changes to this chapter.

Most likely, if something changes, then some kind of law will be adopted, such as the one already under the ECHR - December 15, 2015. Then they allowed the Constitutional Court (CC) to recognize the decisions of the ECHR as unenforceable - if this contradicts the Constitution of Russia. And here the question arises: we already have a law that allows not to execute the decision of the ECHR, which actually speaks of the priority of the Constitution over the decisions of the ECHR. What they will do now and whether this will affect the ECtHR is unclear.

Since the adoption of this law, there have been only two cases when the Constitutional Court decided that Russia may not comply with the decision of the ECHR - as contrary to the Constitution. The first is voting rights the case of Anchugov and Gladkov's . The second case is compensation of 1.8 billion euros in the Yukos case.

Maybe the president's message is aimed at expanding this practice. So that there are not two, but one hundred and two such decisions. Perhaps it is planned to expand the powers of the Constitutional Court and change the procedure for declaring ECHR decisions unenforceable. Because now for this you need to go through a separate procedure: the Ministry of Justice must apply to the Constitutional Court with a request, the court opens the case, looks, makes a decision.

But all this is guesswork. While there is no specific project, we do not understand what will happen and how it will affect us. When something appears, then it will be possible to discuss it.

What Vladimir Putin said:

“You know what problems in education, healthcare, and other areas are caused by the gap (I have already spoken about this many times) between the state and municipal levels of government. And such a division, confusion of powers, first of all, negatively affects people.

The rights, opportunities and guarantees provided for by law, common to all citizens, are provided differently in different regions and municipalities. This is unfair to a person and poses a direct threat to our society and the integrity of the country.

I consider it necessary to enshrine in the Constitution the principles of a unified system of public authority, to build effective interaction between state and municipal bodies. At the same time, the powers and real possibilities of local self-government - the level of power closest to the people - can and should be expanded and strengthened.

Denis Shedov, lawyer at OVD-Info and HRC Memorial:

Now the Constitution states that local self-government is independent of state power, and it is proposed to unite them. It seems to me that this will lead to the subordination of local self-government to state power.

In accordance with the Federal law on rallies, actions are coordinated by the executive authorities of the subject or municipal authorities. But in practice, only municipalities do this in only 25 regions of Russia. In other regions, the actions are coordinated with both state authorities and local self-government. Or, as in Moscow and St. Petersburg, only with state authorities.

As a rule, local laws require that either large-scale actions or actions near state authorities and in the city center be coordinated with state bodies.

So the state seeks to control the expression of the opinion of citizens, not trusting local self-government. The state power in the regions is the governors, and in our country almost all the governors are from United Russia. But sometimes there are independent or opposition deputies in local self-government bodies, it is much easier to get elected there.

For example, in 2015, in the Sverdlovsk region, the local law on rallies was specially changed, transferring the authority to coordinate actions from the city authorities to the regional ones. At that time, oppositionist Yevgeny Roizman was the mayor of Yekaterinburg.

In Moscow and St. Petersburg, the municipal authorities are completely removed from the issues of coordinating shares. Moreover, state authorities seek to restrict municipal deputies from organizing local events related to acute social issues. For example, an attempt by the head of the Krasnoselsky district, Ilya Yashin, to hold a municipal holiday “Day of Free Elections” in December 2018 ended in arrests.

It is likely that the reduction in the powers of municipal authorities will lead to the spread of the "Moscow model" throughout the country - when the issues of coordinating actions will be entirely decided by state authorities, while remaining practically closed to independent and opposition deputies.