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The Relation between the National and International Remedies for Human Rights Violations

On Wednesday, May 15, experts discussed the issues of civil rights protection in international and national practices, as well as law effectiveness at such levels, within the framework of the IX International St. Petersburg Legal Forum.

The session was moderated by Ad Hoc Judge of the European Court of Human Rights, Associate Professor at the Chair of Commercial Law of St. Petersburg State University Andrey Bushev. The representative of the Russian Federation in the European Court of Human Rights - Deputy Minister of Justice of the Russian Federation Mikhail Galperin made welcome remarks before the start of the session. Judge of the Constitutional Court of the Russian Federation Nikolay Bondar, President of the Council of State of Turkey Gungor Zerrin, Head of the Department of International Law at Moscow State University Aleksey Ispolinov, Minister of Justice of Slovenia Andreja Katic, Head of Center of Foreign Legislation and Comparative Law at the Institute of Legislation and Comparative Law under the Government of the Russian Federation Anatoliy Kovler, Magistrate at the Constitutional Court of Spain Candido Conde-Pumpido, Judge of the European Court for Human Rights Iulia Motoc, Deputy Chief Justice of the Supreme Court of the Russian Federation Tatyana Petrova, Director of Human Rights at the Council of Europe Christophe Poirel, and Adviser to the President of the Russian Federation on the development of the civil society and human rights Mikhail Fedotov participated in the discussion.

According to Mikhail Galperin, the issues of relations between the national and international forms of protection are crucial for law. “This issue is very important not only for Russia, but also for all the member-countries of the Council of Europe. The problem is resolved differently, and Russia has its own way”, – the Representative of the Russian Federation in the European Court of Human Rights said.

The speaker noted that the issue of availability of national means of protection is closely related to the territories with the so-called “grey” status. “It is important, indeed, that we have determined together, how to make sure that the rights of people, living in such territories, are protected. <…> But without legal illusions”, Mr. Galperin added.

Nikolay Bondar, in his speech, touched upon the topic, announced for the forum in general, – “The Art of Law”. “In my opinion, justice is, perhaps, the top form of legal art. In this relation, I have just recalled Bismarck, who once said, giving an interview, that politics is the art of the possible. And I think that justice is the art of making impossible possible. It is the art of finding a compromise, a balance in the situations, which seemingly exclude an opportunity to find such a compromise”, Judge of the Constitutional Court of the Russian Federation said.

He also said that by acknowledging certain law requirements unconstitutional, the law goes to a higher level of standards, which are related to the content of the legislation. “It shall be based on the constitutional maxim: unjust law shall not have a constitutional meaning. And this is an incredibly demanding and difficult task, which the Constitutional Court deals with”, Nikolay Bondar noted. He also added that the Constitutional Court of the Russian Federation is actively dealing with the decisions of the European Court and European Convention on Human Rights – over 30% of the court rulings refer to them.

President of the Council of State of Turkey Gungor Zerrin told us, how the national and international remedies for human rights violations interwork in Turkey. The speaker encouraged the colleagues to remember that international protection of rights is an addition to the national one.

Anatoliy Kovler followed up on the views of the Turkish colleague. He underlined, that there is a conflict of interpretation in the norm correlation practice. In particularly, it refers to the situations, when mass media covers the conflicts between the Constitutional Court and European Court of Human Rights as “hot” facts. Nevertheless, as the expert said, it happens with all the countries, the phenomenon is widely spread and there is nothing tragic about it.

According to Christophe Poirel, the European Convention on Human Rights helps avoid the conflicts between the national and international legislation. “A right without a legal protection does not exist. It seems that this principle is nothing but common sense. The right protects you only if you have means of protection against the violation of this right. The means of protection usually make a bridge from the declaration of rights to their practical implementation. There is no surprise that the European Convention gives top priority to the means of protection. We might say that this is the main added value, brought by the Convention. The Convention does not invent new rights. It simply expands the mechanisms of efficient court protection of these rights, first of all, at the national and then at the European levels”, the expert explained. He specified that the presence of the case in the European Court of Human Rights means that Russia, for example, lacks in internal efficient means of judicial right protection.

Iulia Motoc said that the European Court of Human Rights often leaves the matter to the discretion of the national courts. “In the recent judicial practice, the court relies on the subsidiarity principle and doctrine of the margin of appreciation”, the speaker concluded.

St. Petersburg International Legal Forum is held between May 14 and May 18 in the Eastern Wing of the General Staff Building of the State Hermitage. It is organized with the support of the President of the Russian Federation and the Ministry of Justice of the Russian Federation.