Interaction of the system of national and international law of the Russian Federation in the light of the adoption of constitutional amendments

Golikova Ol'ga PhD in History 654066, Russia, Kemerovskaya oblast', g. Novokuznetsk, ul. Pr. Oktyabr'skii, 49 momsi@yandex.ru

Salnikova Anastasiya Ivanovna 654066, Russia, Kemerovskaya oblast', g. Novokuznetsk, ul. Pr. Oktyabr'skii, 49 momsi@yandex.ru

The Constitution of the Russian Federation was adopted by the people of Russia on December 12, 1993, at the dawn of the formation of the Russian state in the format of the post-Soviet space. It contains the foundations of the state structure, the system of separation of powers, the rights and obligations of citizens, social guarantees, etc. The Constitution defines the position of the system of national law and international law in Part 4 of Article 15, establishes the primacy of the norms of the latter over the former. Such a legal formulation in the 1993 situation looked quite appropriate and reasonable. The Russian state sought to consolidate its position in the new system of international coordinates in the most favorable way, demonstrating to the international community its readiness for constructive dialogue, the ability to take a step forward in integration processes, leaving behind the disagreements of the Cold War and abandoning the stereotypes of a bipolar world ^[1].

The development of foreign policy relations of the Russian Federation was built into the established system of interaction. In 1996, our state became a member of the Council of Europe. One of the consequences of this step was the ratification of the European Convention of 1950, aimed at protecting human rights and freedoms ^[2]. Ratification in 1998 allowed the European Court of Human Rights to extend its jurisdiction to our state ^[3], and Russian citizens, on the basis of Article 46 of the Constitution, to apply to the Court in order to protect the rights and interests violated, in their opinion, by the state. From that moment on, a huge number of complaints began to be submitted to the Court every year ^[4].

The Court's decision, as a rule, obliges the state to compensate for the damage caused in the form of material compensation, or suggests making changes to the legal system in order to eliminate the existing legal defect leading to a violation of the provisions of the Convention (the practice of pilot judgments) ^[5].

The need to make changes leads to a legal conflict – a clash of interests between two legal systems – national and international. The issue of the admissibility of the execution of decisions of the European Court has repeatedly become the subject of controversy among domestic lawyers and legal scholars, due to the controversy and ambiguity of various situations ^[6]. The difficulty lies in the fact that, on the one hand, according to the established fundamental principle of international relations – pacta sunt servanda (contracts must be executed), enshrined in the Vienna Convention on the Law of Treaties of 1969, the Russian side must comply with the decisions made ^{[7, p. 59]}. The implementation of this principle, according to V.S. Kichenina and E.A. Fesenko, is the key to productive cooperation between states and allows joint efforts to solve problems ^{[8, p. 73]}. On the other hand, the introduction of the proposed changes demonstrates the direct intervention of the supranational mechanism in the sovereign affairs of the state.

V. D. Zorkin, Chairman of the Constitutional Court of the Russian Federation, has repeatedly spoken about determining the place of ECHR decisions in the legal space of our state. He notes that the decisions of the European Court are sources of Russian law and are binding. Relying on Part 4 of Article 15 of the Constitution, Zorkin V. D. points to the consolidation of the primacy of international norms over national ones, including with regard to the decisions of the European Court ^[9]. Such a statement provoked remarks that there is a situation in which the Russian state is losing its identity, allowing Western colleagues to interfere in our legal space and dictate their conditions and vision of what our legal system should look like ^[10-13]. Such ideas have a populist connotation and sometimes lack legal support.

The definition of a clear order in establishing the nature of the permissibility of the ECHR's interference in domestic legal affairs of the Russian Federation was expressed in a speech by V. D. Zorkin in May 2017 at the International Conference on Constitutional Justice in St. Petersburg. In his report, the chairman pointed out the existence of the principle of constitutional identity, which clearly defines the boundaries in the issue of the admissibility of interference in national law by means of making positive decisions by the European Court of Justice, providing for the need to reform the basic law of our state ^{[14, p. 3]}. Evaluating the decisions of the ECHR, it is necessary to take into account the nature of the rulings and how they interact with the constitutional foundations countries. If the decisions of the European Court of Justice affect the foundations of the Constitution of the Russian Federation, they cannot be acceptable.

The emergence of the principle of constitutional identity is caused by several reasons. One of them is related to the outspoken pressure policy of the ECHR in connection with the issuance of a number of judgments against the Russian Federation affecting the foundations of the constitutional system. The decision in the case "Konstantin Markin v. Russia" ^[15], the decision in the case "OAO Yukos Oil Company v. the Russian Federation" ^[16] and the decision in the case "Anchugov and Gladkov v. Russia" ^[17] caused a conflict of two legal systems, since they provided. the need to amend the Constitution. For example, the ruling in the case "Anchugov and Gladkov v. Russia" referred to the amendment of Article 32, in order to grant voting rights to persons in places of deprivation of liberty ^{[18, p. 70]}; ^{[19, p. 60]}. An open statement on interference in the Constitution led to the Constitutional Court of the Russian Federation taking a principled position determining the level of obligation to comply with the judgments of the ECHR. In 2015 The Constitutional Court adopted Resolution No. 21-P according to which decisions made by the European Court of Justice should be checked for compliance with the Constitution of the Russian Federation ^[20]. The resolution considers the issue of the constitutionality of the binding provisions of the 1950 Convention in case of conflicts with Russian legislation, and also emphasizes that the Court is a subsidiary interstate judicial body. The compliance checks carried out may become the basis for the possibility of non-compliance with the requirements of the European Court.

The continuation of Resolution No. 21-P was the adoption of Constitutional Law No. 7-FKZ on December 14, 2015 "On Amendments to the Federal Constitutional Law "On the Constitutional Court of the Russian Federation" ^[21], which gives the Constitutional Court the right to rule on the impossibility of executing the ECHR ruling in whole or in part of the decision.

As a result of the adoption of Resolution No. 21-P of the Constitutional Court of the Russian Federation, a new Chapter XIII has been added to Federal Constitutional Law No. 7-FKZ.1, which provides for the possibility of sending a request to the Constitutional Court of the Russian Federation, defines the criteria for the admissibility of the request, and sets the limits of verification. Article 104.4 establishes the types of specific decisions in the case: on the possibility of execution in whole or in part in accordance with the Constitution of the Russian Federation; on the impossibility of execution in whole or in part in accordance with the Constitution of the Russian Federation.

The next stage in the development of relations was the adoption of constitutional amendments in July 2020. Thus, in Article 79, it is clearly stated that decisions of interstate bodies adopted on the basis of the provisions of international treaties of the Russian Federation in their interpretation, contrary to the Constitution, are not subject to execution ^[22]. A logical and logical continuation was the adoption of Federal Law No. 365-FZ dated 09.11.2020 "On Amendments to the Federal Law "On Security", in addition Part 3 the principle set out in Article 79 ^[23] is fixed.

The emphasis setting is quite a timely and logical step, as it shows the level of independence and independence of the Russian state as a strong participant in international politics. The change in the rhetoric of the Russian Federation towards not only the decisions of the ECHR, but also any other supranational mechanism is explained by the strengthening of the country's position on the world stage. If in 1993 our state could not afford such statements for quite objective reasons, then gradually it became inevitable and only a matter of time ^[24].

The active position of pressure from the European Court of Justice forced us to reconsider the basic principles of interaction and dot the "I" in matters of admissibility and unacceptability of decisions rendered by the ECHR. The amendment to Article 79 and the adoption of Federal Law – FZ No. 365 on the interaction of the system of national and international law consolidated only the practice that has developed and operated for several years. However, these changes in legislation will not solve the problem of conflicts, since they do not provide a mechanism for solving them, but only provide opportunities for non-fulfillment of conflicting decisions. Such a balance of power is not a way out of the deadlocks that arise as a result of the confrontation of legal systems. Each side looks at a specific situation in its own way, and makes decisions based on its own beliefs.

We see the solution to the stalemate in several ways. The first one is more flexible, provides for the continuation of the movement in search of compromises and concessions, conducting a constructive dialogue, mutual adherence to the principle of good faith, which, in fact, will continue the format in which relations are developing at the moment. But such appeals, as practice has shown, cannot guarantee not only a quick, but also a productive outcome, since the decisions of the European Court of Justice openly demonstrate its unwillingness to listen to arguments and arguments from the Russian state. Nevertheless, a favorable development of relations is not excluded.

The second method is more rigid. It is based on the possibility of taking radical measures, namely, to exclude part 4 of Article 15 from the Constitution. Such a decision will make it possible to abandon the consolidation of the primacy of international law over national law in the basic law. At the same time, the presence of Articles 79 and 46 will leave the opportunity for citizens to apply to international bodies, including the European Court of Justice, for the protection of their interests. The exclusion of Part 4 of Article 15 will not mean that the Russian state breaks off foreign policy ties and goes into a position of isolation, since it remains an active participant in interaction with both other states and supranational mechanisms, but with a special approach in which dialogue is based primarily on the principle of the constitutional identity of the Russian state