«Good-bye, Council of Europe!» or «Council of Europe, we got to talk!»

The subject of the article is the Judgment of the ECtHR in the case Anchugov and Gladkov v. Russia and the corresponding decision of the Russian Constitutional Court on the issue of the non-implementation of the ECtHR Anchugov and Gladkov decision because of its contradiction to the Russian Constitution. The author shows and analyses certain weaknesses of the ECtHR decision and the efforts of the Russian Constitutional Court to find a mode of its implementation in conformity with the Russian Constitution. The article presents a comparative survey the decision of the Russian Constitutional Court with two new decisions of the German Federal Constitutional Court in which the German Court rather outspokenly underlines the priority of the fundamental principles of the Basic Law for the Federal Republic of Germany vis-à-vis the Treaty of the European Union and the priority of German federal laws vis-à-vis international treaties. The judgments of the ECtHR, the Russian and the German constitutional courts show a structural problem of the interrelation of international and national law, especially constitutional law, to be a logical consequence of the dualist theory. Though the ECtHR symbolizes the commonly believed harmony of both legal systems – international and national (giving a certain degree of superiority to international law), the dualist model still lacks a mechanism which could allow implementation of the Court’s decisions without entering into the domestic legal realm, if this implementation would in any way violate national law ranking higher than the European Convention of Human Rights.

About the author: Alexander Blankenagel – Professor in Public Law, Humboldt University, Berlin, Germany.

Citation: Blankenagel A. (2016) “Proshchay, Sovet Evropy!” or “Sovet Evropy, davay pogovorim!”? Kommentariy k Postanovleniyu Konstitutsionnogo Suda Rossii ot 4 iyulya 2013 goda ob ispolnimosti Postanovleniya ESPCh po delu Anchugova i Gladkova [“Good-bye, Council of Europe!” or “Council of Europe, we got to talk!”? A commentary to the Russian Constitutional Court Judgment of 4 July 2013 on the implementation of the Anchugov and Gladkov Judgment of the European Court of Human Rights]. Sravnitel’noe koinstitutsionnoe obozrenie, vol. 25, no. 6, pp. 135–150. (In Russian).

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