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Strasbourg is not a reason for sentence review
Written by Екатерина Винокурова   
Пятница, 17 Июнь 2011
ImageActing Speaker of the Federation Council, Alexander Torshin, proposes that sentences already handed down not be revised, even if, according to the verdict of Strasbourg (European Court of Human Rights), human rights were violated during the course of the investigation and trial. If the law is not consistent with the Constitution, then reconsideration of sentencing is unnecessary. If there was no decision made by the Constitutional Court of Russia, however, then one must appeal first to it, suggested Torshin. According to the expert, under the Constitution, Russian law may not disagree with international obligations.
Decisions of the European Court of Human Rights (ECHR) should not lead to a revision of sentences in individual cases if they were reached according to the law, said Acting Speaker of the Federation Council Alexander Torshin.
The senator introduced a bill in the Duma to amend Article 415 of the Criminal Procedure Code, «Initiation of proceedings», as well as Article 312 of the Arbitration Procedure Code, «Procedure and time of application for judicial review due to new or newly discovered evidence». The amendment states that a determination by the Strasbourg Court of a human rights violation in the application of any law cannot serve as a basis for reviewing sentencing if the law is consistent with the Constitution.
In cases where the European Court reaches a decision on human rights violations as a result laws that originally did not meet Russia's international obligations, Torshin suggests that courts appeal to the the Constitutional Court of Russia.
As one of the reasons for the development of the bill, Torshin gave the example of the case of Konstantin Markin versus Russia.
Captain Konstantin Markin divorced his wife in 2005 after the birth of their third child, and made an agreement with her that the children would stay with him. Markin asked his commander to grant him leave to care for a child, but the commander refused, since by law such leave is only granted only to female service members. After losing in courts in all instances, Markin, appealed to the Constitutional Court, but they failed to consider his complaint. As a result, in 2011, Markin's suit reached the European Court of Human Rights, which found that the military discriminated against him based on his gender, since the right to family life is not subject to restrictions.
After the ECHR reached this decision, Constitutional Court Chairman Valery Zorkin issued a harsh statement that «the European court for the first time in harsh legal form has questioned a decision of the Constitutional Court of the Russian Federation,» noting that «the Strasbourg Court has a right to tell countries of errors in law, but in cases when the ECHR's decision directly contradicts the Russian Constitution, the country must abide by its national interests,» which was seen as a threat to ignore Russia's implementation of the ECHR's decision.
ECHR decisions (Russians constitute one-fifth of all cases seen by this court) can lead to the Committee of Ministers of the Council of Europe to demand that Russia revise its national legislation, said Torshin, while in Russia they can lead to wave of sentence revisions in cases of newly discovered evidence. His bill warns of this danger.
The bill is likely to find support in the Duma committees on civil, criminal, arbitrage and procedural legislation. Pavel Krasheninnikov, chairman of the committee from the United Russia party, told 'Gazeta.ru' that such conflicts should be resolved by law: court decisions cannot be reviewed when they contradict the fundamental law of the country.
The MP said that the emergence of situations in which international court decisions run contrary to the Constitution are unacceptable, because that is what the Constitution is — the fundamental law of the country.
Attorney Vadim Klyuvgant was surprised by the legislator's initiative. He recalled that the competence of the European Court does not include evaluating judicial decisions in terms of their legality or compliance with international legal norms.
In Strasbourg they only evaluate the validity of a complaint of violations of the rights protected by international conventions as ratified by Russia, said Klyuvgant.
The Russian Federation has ratified the European Convention for the Protection of Human Rights and Freedoms, and recognizes that an ECHR decision cannot be overridden by any national law, said the lawyer, calling Torshin's argument «an intentional confrontation.» Regarding a proposal to verify laws on which a sentence was passed, or trying to appeal such laws, including appeals to an ECHR decision, Klyuvgant pointed out with some irony that the Constitutional Court is already overwhelmed and its responsibilities also included assessing existing laws under review in each case.

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