 |
RESOLUTION ADOPTED BY THE PLENUM
OF THE SUPREME COURT OF THE RUSSIAN FEDERATION
No 5 Moscow 10 October 2003
On application by courts of general jurisdiction of the commonly
recognized principles and norms of the international law
and the international treaties of the Russian Federation
Commonly recognized principles and norms of the international
law and the international treaties under Item 4 of Article
15 of the Constitution of the Russian Federation are a component
part of its legal system.
Federal law No 101-FZ dated 15 July 1995 “On the International
Treaties of the Russian Federation” stipulates that the Russian
Federation, advocating the observance of treaty obligations
and common norms, confirms its commitment to the basic principle
of the international law – the principle of fair implementation
of international obligations.
International treaties are one of the main instruments of
promoting international cooperation, facilitating broader
international relations in particular with participation of
the State and non-State organizations, in particular with
the participation of national law entities including natural
persons. International treaties play a paramount role in protecting
human rights and basic freedoms. To this end, it is necessary
to further improve judicial activities relating to the implementation
of regulations of the international law at intrastate level.
For the purpose of insuring correct and uniform application
by courts of law of the international law in administering
justice the Plenum of the Supreme Court of the Russian Federation
r e s o l v e s to provide the following clarifications:
1. The Russian Federation recognizes and guarantees the rights
and freedoms of man and citizen in keeping with commonly recognized
principles and norms of the international law and pursuant
to the Constitution of the Russian Federation (Item 1 of Article
17 of the Constitution of the Russian Federation).
Under Item 1 of Article 46 of the Constitution everyone shall
be guaranteed protection of his or her rights and liberties
in a court of law.
Bearing in mind what the above mentioned and the provisions
of Item 4 of Article 15, Item 1 of Article 17, and Article
18 of the Constitution of the Russian Federation, the rights
and liberties of man in conformity with commonly recognized
principles and the norms of the international law, as well
as the international treaties of the Russian Federation shall
have direct effect within the jurisdiction of the Russian
Federation. They shall determine the meaning, content and
application of the laws, and the activities of the legislative
and executive branches and local governments, and shall be
secured by the judiciary.
The commonly recognised principles of the international law
shall imply the basic imperative norms of the international
law accepted and recognised by the international community
of States as a whole, the deviation from which is inadmissible.
The commonly recognised principles of the international law,
in particular, comprise the principle of universal respect
for human rights and the principle of fair implementation
of international obligations.
The commonly recognised norm of the international law shall
imply the rule of conduct accepted and recognised as legally
mandatory by the international community of States as a whole.
The content of the said principles and norms of the international
law may be laid down, in particular, in the documents of the
United Nations and its specialized agencies.
2. The international treaties of the Russian Federation together
with the commonly recognised principles and norms of the international
law shall be a constituent part of its legal system (Item
1 of Article 5 of the Federal Law “On the International Treaties
of the Russian Federation”).
The effective international treaties signed by the USSR in
respect to which the Russian Federation continues to exercise
the USSR international rights and obligations as a State-successor
of the USSR are also a constituent part of the legal system
of the Russian Federation.
Pursuant to Item “a” of Article 2, of the Federal Law «On
the International Treaties of the Russian Federation», the
international treaty shall imply an international treaty signed
by the Russian Federation with a foreign State (or States)
or with an international organisation in writing and regulated
by the international law regardless whether such a treaty
is contained in one or several interrelated documents and
irrespective of its specific name (e.g. convention, pact,
treaty, etc.).
The international treaties of the Russian Federation shall
be concluded on behalf of the Government of the Russian Federation
(intergovernmental agreement), and on behalf of federal executive
governmental bodies (interagency agreements).
3. In accordance with Item 3 of Article 5 of the Federal Law
“On the International Treaties of the Russian Federation”,
terms and conditions of the officially published international
treaties of the Russian Federation requiring no adoption of
intrastate acts for their application shall have direct effect
in the Russian Federation. To implement other provisions of
its international treaties the Russian Federation shall enact
appropriate legal acts.
The elements whereby a direct application of provisions of
an international treaty of the Russian Federation is deemed
impossible, comprise, in particular, indications, contained
in the treaty, regarding obligations of Member-States to amend
national laws of these states.
In hearing civil, criminal or administrative cases the court
directly applies such international treaty of the Russian
Federation which became effective and mandatory for the Russian
Federation and when its provisions do not require adoption
of intrastate acts for their application and are capable of
giving rise to the rights and obligations for national law
entities (Item 4 of Article 15 of the Constitution of the
Russian Federation, Items 1 and 3 of Article 5of the Federal
Law “On the International Treaties of the Russian Federation”,
Item 2 of Article 7 of the Civil Code of the Russian Federation).
4. In deciding whether the treaty norms of the international
law can be applied, the courts should realise that the international
treaty enters into force in accordance with the procedure
and on the date provided for in the treaty itself or agreed
upon by the States which have taken part in negotiations.
If there is no such a stipulation or arrangement the treaty
enters into force as soon as the consent of all States participating
in negotiations is expressed for the treaty to be mandatory
for them (Article 24, Vienna Convention on the Law of Treaties,
1969).
The courts shall bear in mind that the international treaty
would be subject to application provided that the Russian
Federation expressed its consent through competent governmental
bodies for the international treaty to be mandatory to it
by one of the actions listed in Article 6 of the Federal Law
«On the International Treaties of the Russian Federation»
(by signing the treaty; exchanging the documents establishing
it; ratifying the treaty; approving the treaty; adopting the
treaty; acceding to the treaty; by any other way agreed upon
by the treaty parties), and under condition that this treaty
has entered into force for the Russian Federation (e.g., Convention
on Protection of Human Rights and Basic Freedoms was ratified
by the Russian Federation by Federal Law No 54-FZ dated 30
March 1998 and entered into force for the Russian Federation
on 5 May, 1998, the day of reposition of the instrument of
ratification to the Secretary General of the Council of Europe
under Article 59 of the Convention).
Proceeding from the substance of Items 3 and 4 of Article
15 of the Constitution of the Russian Federation, Item 3 of
Article 5 of the Federal Law “On the International Treaties
of the Russian Federation” the courts themselves can apply
those effective international treaties which were officially
published in the Legislative Acts Collection of the Russian
Federation or in the Bulletin of International Treaties in
the manner established by Article 30 of the above mentioned
Federal Law. International treaties of the Russian Federation
of an interagency nature are published according to the decision
of federal bodies of executive authorities on behalf of which
such treaties were signed, in official publications of these
bodies.
The international treaties of the USSR mandatory for the Russian
Federation as a State-successor of the USSR have been published
in official publications of the Supreme Soviet of the USSR,
Council of Ministers (Cabinet of Ministers) of the USSR. The
texts of these treaties have also been published in collections
of international treaties of the USSR, but this publication
was not official.
Official information of the Ministry of Foreign Affairs of
the Russian Federation on the entry into force of the international
treaties signed on behalf of the Russian Federation and of
the Government shall be subject to publication in accordance
with the same procedure that the international treaties (Article
30 of the Federal Law “On the International Treaties of the
Russian Federation).
5. International treaties which have a direct and immediate
effect in the legal system of the Russian Federation shall
be applied by the courts including military ones, in resolving
civil, criminal and administrative cases, in particular:
in considering civil cases, provided that the international
treaty of the Russian Federation has set out other rules than
the Russian Federation legislation regulating the relations
brought to court for consideration;
in trying civil and criminal cases, provided that the international
treaty of the Russian Federation has set out other rules of
court proceedings than the Civil Procedural or Criminal Procedural
Law of the Russian Federation;
in trying civil and criminal cases, provided that the international
treaty of the Russian Federation regulates relations, including
the ones with foreign individuals which were brought to court
for trial (e.g., in judging the cases listed in Article 402
of the Civil and Procedural Code of the Russian Federation,
appeals on the execution of decisions taken by foreign courts,
complaints against decisions on extradition of individuals
charged with a crime or convicted by a court of a foreign
State);
in trying cases on administrative offences, provided that
the international treaty of the Russian Federation stipulates
other rules than those set forth by the legislation on administrative
infractions.
To draw attention of courts to the fact that the consent for
the international treaty to be mandatory for the Russian Federation
should be expressed in the form of a federal law, provided
that this treaty stipulates other rules than the federal laws
(Item 4 of Article 15 of the Constitution of the Russian Federation,
Items 1 and 2 of Article 5, Article 14, Item 1 «a» of Article
15 of the of the Federal Law “On the International Treaties
of the Russian Federation”, Item 2 of Article 1 of the Civil
and Procedural Code of the Russian Federation, Item 3 of Article
1 of the Criminal and Procedural Code of the Russian Federation.
6. International treaties with the norms providing for indications
of criminal offences shall not be applied by courts directly
because such treaties stipulate directly the obligation of
States to ensure the implementation of obligations set out
by the treaty by making certain offences punishable by the
internal (national) law (e.g., the Uniform Convention on Drugs,
1961, International Convention against Taking the Hostages,
1979,the Convention for the Suppression of Unlawful Seizure
of Aircrafts, 1970).
According to Article 54 and Subitem « o » of Article 71 of
the Constitution of the Russian Federation and Article 8 of
the Criminal Code of the Russian Federation, a person who
has committed an offence having all elements of a crime set
out by the Criminal Code of the Russian Federation is subject
to criminal liability in the Russian Federation.
In this connection, the international legal norms stipulating
component elements of crimes shall be applied by courts of
the Russian Federation in those circumstances when the norm
of the Criminal Code of the Russian Federation stipulates
directly the need to apply the international treaty of the
Russian Federation (e.g., Articles 355 and 356 of the Criminal
Code of the Russian Federation).
7. By virtue of Item 4 of Article 11 of the Criminal Code
of the Russian Federation the issue of criminal liability
of diplomatic representatives of foreign States and other
citizens enjoying immunity in the event of committing an offence
by these persons in the territory of the Russian Federation
is resolved in accordance with the norms of the international
law (in particular, pursuant to the UN Convention on Privileges
and Immunities, 1946, UN Convention on Privileges and Immunities
of Specialized Agencies, 1947, Vienna Convention on Diplomatic
Relations, 1961, Vienna Convention on Consular Relations,
1963).
The category of individuals enjoying immunity includes, for
instance, heads of diplomatic missions, members of missions
having diplomatic rank and family members thereof, if they
are not citizens of the host country. Other persons enjoying
immunity comprise, in particular, heads of States, governments,
heads of foreign policy agencies of States, staff members
of diplomatic missions in charge of administrative and technical
services of the mission, family members thereof, families
living together with the said persons provided they are not
citizens of the host State and not residing there permanently
as well as other persons enjoying immunity in keeping with
commonly recognised principles and norms of the international
law and the international treaties of the Russian Federation.
8. The rules of the effective international treaty of the
Russian Federation, the consent on the mandatory nature of
which was issued in the form of a federal law shall be given
priority against the laws of the Russian Federation.
The rules of the effective international treaty of the Russian
Federation, the consent on the mandatory nature of which was
issued in the form of a federal law shall be given priority
against the regulatory acts published by a governmental body
that has signed the treaty (Item 4 of Article 15, Articles
90, 113 of the Constitution of the Russian Federation.
9. In administering justice the courts shall bear in mind
that pursuant to the substance of Item 4 of Article 15 of
the Constitution of the Russian Federation, Articles 369,
379, Item 5 of Article 415 of the Criminal and Procedural
Code of the Russian Federation, Articles 330, 362-364 of the
Civil and Procedural Code of the Russian Federation, an incorrect
application by the court of commonly recognised principles
and norms of the international law and the international treaties
of the Russian Federation may serve as a reason to repeal
or amend a court act. Incorrect application of the norm of
the international law may occur in the event when the court
failed to apply the norm of the international law subject
to application or, on the contrary, the court has applied
the norm of the international law which was not subject to
application or when the court misinterpreted the norm of the
international law.
10. To clarify to courts that the interpretation of the international
treaty should be done in accordance with the Vienna Convention
on the Law of the Treaties of 23 May, 1969 (Section 3; Articles
31-33).
In accordance with Subitem «b» of Item 3 of Article 31 of
the Vienna Convention, in interpreting the international treaty,
one should, together with its context, take into account the
follow-up practice of the treaty which establishes an agreement
of its members with regard to its interpretation.
The Russian Federation, as a Member-State of the Convention
on Protection of Human Rights and Basic Freedoms recognises
the jurisdiction of the European Court on Human Rights as
mandatory with respect to interpretation and application of
the Convention and Protocols thereof in the event of an assumed
breach by the Russian Federation of provisions of these treaty
acts when the assumed breach has taken place after their entry
into force in respect to the Russian Federation (Article 1
of the Federal Law “On Ratification of the Convention on Protection
of Human Rights and Basic Freedoms and Protocols thereof »
No 54-FZ of 30 March, 1998). That is why the application by
courts of the said Convention should take into account the
practice of the European Court on Human Rights to avoid any
violation of the Convention on Human Rights and Basic Freedoms.
11. The Convention on Human Rights and Basic Freedoms has
a mechanism of its own which includes a compulsory jurisdiction
of the European Court on Human Rights and a systematic monitoring
over the execution of the decisions of the Court by the Committee
of Ministers of the Council of Europe. In accordance with
Item 1 of Article 46 of the Convention these decisions with
regard to the Russian Federation adopted finally shall be
mandatory for all State bodies of the Russian Federation including
for the courts.
The implementation of the decisions related to the Russian
Federation presumes, if necessary, the obligation on the part
of the State to take measures of a private nature aimed at
eliminating violation of human rights stipulated by the Convention
and the impact of these violations on the applicant as well
as measures of a general nature to prevent repetition of such
violations. The courts within their scope of competence should
act so as to ensure the implementation of obligations of the
State stemming from the participation of the Russian Federation
in the Convention on Protection of Human Rights and Basic
Freedoms.
If the court in hearing a case has established the circumstances
that contributed to the violation of the rights and liberties
of citizens guaranteed by the Convention, the court has the
right to issue its ruling (or decision) which would draw attention
of relevant organisations and officials to the circumstances
and facts of violation of the rights and liberties requiring
that necessary measures be taken.
12. The courts in administering justice shall take into account
that by virtue of Item 1 of Article 6 of the Convention on
Protection of Human Rights and Basic Freedoms everyone has
the right to court proceedings within a reasonable time period.
In calculating the said time period on criminal cases the
court proceedings shall cover both the pre-trial investigation
procedure and the court proceedings as such.
According to the legal positions worked out by the European
Court on Human Rights the calculation of the time period starts
at the time when the person is charged with an offence or
apprehended, or put into custody, or other measures of procedural
enforcement have been taken and ends when a sentence has entered
into force or criminal case or criminal persecution was stopped.
The calculation of the term of court proceedings on civil
cases, in accordance with Item 1 of Article 6 of the Convention,
begins at the time when lawsuit has been filed and ends when
the court act has been executed.
Thus, pursuant to Article 6 of the Convention, the execution
of a court decision is viewed as a component of “court proceedings”.
With this in mind, when considering the issues of trial postponement,
deferral, modification of the mode and procedure of court
decision execution and when considering complaints on bailiffs’
action, the courts shall take into account the need to comply
with the requirements of the Convention on the Execution of
Court Decisions within a reasonable time period.
In establishing to what extent the time period of court proceedings
was reasonable, attention should be paid to the complexity
of the case, behaviour of the applicant (claimant, defendant,
suspect, accused), conduct of the State represented by relevant
bodies.
13. When considering civil and criminal cases the courts should
bear in mind that pursuant to Article 47 of the Constitution
of the Russian Federation nobody can be denied the right for
considering his or her case by the court and by the judge
to whose jurisdiction it is referred to by virtue of law.
Under Item 1 of Article 6 of the Convention on Protection
of Human Rights and Basic Freedoms everyone when his or her
civil rights and responsibilities are defined or in considering
any criminal charge brought against him or her has the right
to be tried by the court established in accordance with the
law.
Taking into consideration decisions of the European Court
on Human Rights with regard to the judicial system of the
Russian Federation, this rule extends not only to judges of
federal courts and justices of the peace , but also to the
members of the jury represented by citizens of the Russian
Federation included into the list of the jurors and called
up to administer justice in accordance with the procedure
established by the law.
14. The courts, in deciding the issues relating to the extension
of the custody term , should take into account that under
Item 3 of Article 5 of the Convention on Protection of Human
Rights and Basic Freedoms every person arrested or apprehended
has the right to a court trial within a reasonable time limit
or to be released before the trial.
In accordance with the legal positions of the European Court
on Human Rights, in establishing the time period the accused
is to be kept in custody, the calculation of the term starts
as of the day the accused (the defendant ) was put into custody
and ends as of the day when the judgement was passed by the
trial court.
It should be taken into account that a substantiated suspicion
against a person put into custody for having committed an
offence, serves as a necessary condition for the arrest to
be lawful. At the same time such a suspicion cannot be the
only reason for a protracted detention in custody. There must
be other circumstances that could justify the isolation of
an individual from the society. Such circumstances may include
a possibility that the suspect or the accused may continue
criminal activities or escape from pre-trial investigation
or court prosecution or else falsify the evidence on the criminal
case, or conspire with witnesses.
The circumstances indicated should be real, well-founded,
i.e. be proved by a credible evidence. In the event of extension
of detention in custody the courts should indicate specific
circumstances justifying the extension of such a term and
give evidence proving the existence of such circumstances.
15. When taking a decision whereby the accused is put into
custody as a measure of restraint or the term for detention
in custody is extended, in considering complaints against
unlawful actions of officials of the bodies conducting preliminary
investigation , the courts should take into account the need
to observe the rights of persons kept in custody specified
by Articles 3, 5, 6 and 13 of the Convention on Protection
of Human Rights and Basic Freedoms.
In taking a decision on an appeal to release from custody
or complaint against the prolongation of the duration of detention
in custody the court has to take into account the provisions
of Article 3 of the Convention on Protection of Human Rights
and Basic Freedoms according to which nobody should be subject
to tortures and inhuman or dignity degrading treatment or
punishment.
In the practice of application of the Convention on Protection
of Human Rights and Basic Freedoms by the European Court on
Human Rights, “inhuman treatment” refers to the cases when
such a treatment, as a rule, is of a deliberate nature, extends
over several hours or when as a result of such a treatment
the person has suffered a real physical damage or undergone
serious physical or psychological sufferings.
One should bear in mind that under Article 3 of the Convention
and requirements contained in decisions of the European Court
on Human Rights the conditions of detention of the accused
in custody should be compatible with the respect of human
dignity.
The treatment degrading human dignity is considered to be,
in particular, a treatment that provokes in the individual
a feeling of fear, anxiety and one’s own inferiority.
At the same time the individual should not be caused deprivation
and sufferings in a greater degree than the level of sufferings
which is inevitable in case of a freedom deprivation while
health and well-being of the individual should be guaranteed
taking into account practical requirements of the detention
regime.
The above mentioned level is assessed on the basis of specific
circumstances, in particular, the duration of an unlawful
treatment of a person, the nature of physical and psychological
circumstances of such a treatment. In certain cases sex, age
and health conditions of an individual who was subject to
inhuman or dignity degrading treatment are taken into account.
16. In case difficulties arise in interpreting commonly recognised
principles and norms of the international law, the international
treaties of the Russian Federation the courts should be recommended
to use acts and decisions of international organisations,
including the UN bodies and its specialized agencies and also
to address in this case the Legal Department of the Ministry
of Foreign Affairs of the Russian Federation, the Ministry
of Justice of the Russian Federation (e.g., to clarify the
issues relating to the duration of validity of the international
treaty, the composition of the treaty Member-States, international
practice of its application).
17. To recommend to the Judicial Department under the Supreme
Court of the Russian Federation:
in co-ordination with the Commissioner of the Russian Federation
to the European Court on Human Rights to inform judges on
the practice of the European Court on Human Rights, especially
with regard to decisions regarding the Russian Federation
by distributing authentic texts and their Russian translations
;
to provide on a regular and timely basis the judges with authentic
texts and official translations of the international treaties
of the Russian Federation and other acts of the international
law.
18. To recommend the Russian Academy of Justice when organizing
education process for training, retraining and upgrading courses
for judges and staff-members of court apparatus to pay a special
attention to the study of commonly recognised principles and
norms of the international law and the international treaties
of the Russian Federation, to analyse on a regular basis the
sources of the international and European law, to publish
necessary practical booklets, comments, monographs and other
teaching, methodological and scientific literature.
19. To entrust the Judicial Chambers on Civil and Criminal
Cases, Military Chamber of the Supreme Court of the Russian
Federation and also the Russian Academy of Justice with preparation
of proposals on adding to the already adopted decisions of
the Plenum of the Supreme Court of the Russian Federation
relevant provisions on application of the commonly recognised
principles and norms of the international law and the international
treaties of the Russian Federation.
President ,Supreme Courtof the Russian Federation V.M. Lebedev
Plenum Secretary,Justice of the Supreme Court of the Russian
Federation V.V. Demidov
|
|
