The fate of ECtHR legal positions used in criminal law

The relevance of the study is determined by the fact that after Russia's denunciation of the European Convention on Human Rights (ECHR), changes in the legislation of the Russian Federation (2020-2023), there are almost no studies in the legal literature devoted to analysing the issues that have arisen, especially in the field of protection of fundamental human rights and freedoms in the criminal sphere. Moreover, mostly with pessimistic forecasts, without sufficient substantiation. In this regard, the purpose of the study is to identify the purpose of the decisions of the European Court of Human Rights (ECHR) after the amendments to the Constitution of the Russian Federation in 2020 and denunciation of the ECHR (2022). The subject of the study is the Constitution of the Russian Federation, conventions signed by Russia in the field of protection of human rights and freedoms, decisions of the Constitutional, Supreme Courts of the Russian Federation, reviews of the Supreme Court of the Russian Federation, practice of interstate bodies (2017-2023), studies of representatives of different branches of law on the issues under consideration. The main methods of research are: observation, legal hermeneutics, comparative-legal, systemic. In the process of research the following results were obtained and conclusions were drawn. 1. The practice of the ECtHR in the interpretation of the treaty, which corresponds or partially corresponds to the Constitution of the Russian Federation, is recognised and used by the national legal system of Russia at all levels to justify the provisions of the national legislation, in law enforcement until 2022. So, it should be recognised in the meaning of the subsequent practice of treaty application, which should be taken into account, along with the context of the treaty. 2 The exclusion in the legislative novelties of the Russian Federation of the law enforcer's obligation to implement the judgments of the ECtHR, which entered into force after 15 March 2022, does not mean a ban on taking into account the legal positions of the ECtHR in everyday court practice. Because: treaty implementation includes not only the execution of ECtHR judgments, but also the consideration of the legal positions of the ECtHR when courts consider similar cases; many provisions of international human rights treaties coincide with each other and the Constitution of the Russian Federation; the concepts developed by the ECtHR are also used by other interstate bodies. 3. The practice of UN committees must be considered within the meaning of Article 31(3)(b) of the Convention on the Law of Treaties and must therefore be taken into account along with the context of the treaty. 4. Decisions of interstate bodies, including the decisions of UN committees, should be assessed by the law enforcer for the possibility of their recognition as new circumstances, the emergence of which may become the basis for revision of judicial acts that have entered into legal force. Thus, the practice of the ECtHR recognised by the national legal system, along with decisions of other interstate bodies, should be used by legislators and law enforcers even after the denunciation of the ECHR. Further research is needed to improve the mechanism of implementation of decisions of interstate bodies in the Russian legal system. The author declares no conflicts of interests.

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