Clarification of Resolution No 3-P [Russian Federation, Constitutional Court.]

JurisdictionRusia
CourtSupreme Court (Russia)

Russian Federation, Constitutional Court.

(Zorkin, President; Bondar, Gadzhiyev, Danilov, Zharkova, Zhilin, Kazantsev, Kleandrov, Knyazev, Kononov, Krasavchikova, Mavrin, Melnikov, Rudkin, Seleznev, Sliva, Strekozov, Khokhryakova and Yaroslavtsev, Judges)

Re Clarification of Paragraph 5 of Operative Part of Constitutional Court Resolution No 3-P of 2 February 1999

Human rights Right to life Death penalty Right to jury trial Constitution of Russian Federation, Article 20 Provision for imposition of death penalty until abolition as exceptional form of punishment if right to jury trial Constitutional Court Resolution No 3-P of 2 February 1999 Requirement of right to trial by jury in every region of Russian Federation before death penalty applicable Supreme Court seeking clarification of Resolution No 3-P Whether Resolution No 3-P allowing for application of death penalty where conviction by jury trial Russian Federation member of Council of Europe Russian Federation signing but not ratifying Protocol No 6 to 1950 European Convention on Human Rights, 1983 Legal effect Vienna Convention on the Law of Treaties, 1969, Article 18 Whether Russian Federation violating international legal obligations Judicial practice Moratorium on application of death penalty Effect

Treaties Application and effect Protocol No 6 to 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, 1983 Protocol No 6 signed but not ratified by Russian Federation Legal effect Vienna Convention on the Law of Treaties, 1969, Article 18 International legal obligations undertaken by Russian Federation Obligation not to deprive Protocol No 6 of its object and purpose under Article 18 of Vienna Convention Whether State as whole having obligation Principles of separation of powers, and co-ordinated functioning and interaction Constitution of Russian Federation, Articles 10 and 80(2)

Relationship of international law and municipal law Protocol No 6 to 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, 1983 Russian Federation signing but not ratifying Protocol No 6 Legal effect Vienna Convention on the Law of Treaties, 1969, Article 18 Obligation on State not to deprive Protocol No 6 of its object and purpose Russian courts rendering death sentences after Russia joining Council of Europe and signing Protocol No 6 Substitution of death sentences with lesser punishments Compliance of Constitutional Court Resolution No 3-P of 2 February 1999 Judicial practice Moratorium on application of death penalty Constitutional legal regime Whether Russian Federation violating Constitution or international legal obligations

International organizations Council of Europe Member States Obligations of Russian Federation as Member State Nature of obligations Whether application of death penalty incompatible with obligations The law of the Russian Federation

Summary: The facts:The Supreme Court requested clarification of paragraph 5 of the operative part of the Constitutional Court Resolution No 3-P of 2 February 1999 (Resolution No 3-P). In Resolution No 3-P the Constitutional Court had held that the right to trial by jury had to be established in every region of the Russian Federation before the death penalty could be applied in the Russian Federation.1 Article 20(2) of the Constitution of the Russian Federation (the Constitution) provided for the imposition of the death penalty, until its abolition by a federal law, as the exceptional form of punishment for exceptionally grave crimes against life provided that the accused had the right to trial by jury.

The Russian Federation joined the Council of Europe on 28 February 1996. On 16 April 1997 it signed Protocol No 6 to the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, 1983 (Protocol No 6). Protocol No 6 provided for the abolition of the death penalty except for acts committed in time of war or imminent threat of war. As a State which had signed but not yet ratified Protocol No 6, the Russian Federation was obliged, in accordance with Article 18 of the Vienna Convention on the Law of Treaties, 1969 (the Vienna Convention)2 to refrain from acts which would

defeat the object and purpose of the Protocol, since it had not made clear an intention not to ratify

Held:Paragraph 5 of the operative part of Resolution No 3-P did not allow for the application of the death penalty even if a conviction was the verdict of a jury trial.

(1) The obligation not to deprive Protocol No 6 of its object and purpose under Article 18 of the Vienna Convention was imposed upon the State as a whole. Where one branch of government deviated from that obligation, other branches were to fulfil it on the basis of the principles of separation of powers, and co-ordinated functioning and interaction under Articles 10 and 80(2) of the Constitution (para. 5).

(2) Russian courts had rendered death sentences even after Russia had joined the Council of Europe and signed Protocol No 6. Although courts were guided by the Supreme Court to apply international treaties in force, the legal situation arising from treaties signed but not ratified was ambiguous (para. 5).

(3) Although the rendering and execution of death sentences constituted a violation by Russia of its obligations under Article 18 of the Vienna Convention in respect of Protocol No 6, Russia had avoided a breach. In all cases the death penalty had been substituted by other punishments following a presidential reprieve pursuant to Article 89(c) of the Constitution. Resolution No 3-P, a binding domestic judicial decision, not only complied with Russian legal obligations but reinforced them. Subsequent Constitutional Court rulings reasoned that the death penalty was an impermissible punishment due to Protocol No 6 and Resolution No 3-P, as well as the Constitution. The existing legal situation thus contradicted neither Russia's constitutional provisions nor its international legal obligations (para. 5).

(4) Since Protocol No 6 had not been ratified it was not a legal instrument directly abolishing the death penalty in accordance with Article 20(2) of the Constitution. As such, federal legislation retained death penalty provisions and procedures for its imposition and execution. It followed, however, from Resolution No 3-P, together with other decisions, that the death penalty as an exceptional form of punishment established by the Criminal Code was only temporary. The prolonged moratorium on the application of the death penalty led to sustainable guarantees of the right not to be subjected to the death penalty. It also resulted in a constitutional legal regime, legitimized by judicial practice, which took into account international legal trends and Russia's obligations, and was the framework for an irreversible process aimed at realizing the goal enshrined in Article 20(2) of the Constitution. This regime was applicable from the time Russia undertook certain obligations when joining the Council of Europe and signing Protocol No 6 and when the Constitutional Court, in Resolution No 3-P, established a prohibition on the imposition of the death penalty in the absence of proper procedural guarantees (paras. 67).

Per Judge Rudkin (dissenting): The Supreme Court's request for clarification should have been dismissed since it did not fall within the subject matter considered by the Constitutional Court. The only possible interpretation of Resolution No 3-P was the permissibility of the imposition of the death penalty from 1 January 2010, the date when jury trials were established across the entire territory of the Russian Federation. Since the issue of the Russian Federation's obligations under Article 18 of the Vienna Convention with respect to Protocol No 6 had not been considered in that Resolution, it was not subject to interpretation (paras. 12 of dissenting opinion).

The following is the text of the judgment of the Court:

[The Constitutional Court of the Russian Federation, composed as above] with the participation of the representative of the Supreme Court of the Russian Federation V. A. Davydov, judge of the Supreme Court of the Russian Federation, which submitted a petition to the Constitutional Court of the Russian Federation seeking clarification of the Resolution of the Constitutional Court of the Russian Federation No 3-P of 2 February 1999, relying on Article 21(1), Article 83(1) and (2) of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, examined in a public hearing the issue of the clarification of paragraph 5 of the operative part of the Resolution of the Constitutional Court of the Russian Federation No 3-P of 2 February 1999 in the case concerning the review of the constitutionality of the provisions of Article 41 and Article 42(3) of the Russian Soviet Federal Socialist Republic (RSFSR) Code of Criminal Procedure, paragraphs 1 and 2 of the Resolution of the Supreme Council of the Russian Federation of 16 July 1993 On the Procedure for the Entry into Force of the Law of the Russian Federation On the Introduction of Amendments and Additions to the RSFSR Law On the RSFSR Judiciary, the RSFSR Code of Criminal Procedure, the RSFSR Criminal Code and the RSFSR Code of Administrative Offences.

Having heard the report of Judge-Rapporteur Yu. M. Danilov, the submissions of the representative of the Supreme Court of the Russian Federation V. A. Davydov, the pleadings of the Permanent Representative of the State Duma at the Constitutional Court of the Russian Federation A. N. Kharitonov, the representative of the Council of Federation of the Russian Federation E. V. Vinogradova, Doctor of Laws, the Plenipotentiary Representative of the President of the Russian Federation at the Constitutional Court of the Russian Federation M. V. Krotov, the Plenipotentiary Representative of the Government of the Russian Federation at the Constitutional Court of the Russian Federation M. Yu. Barshchevskiy, the...

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