Resolution No 5 of 10 October 2003 [Russian Federation, Supreme Court.]

JurisdictionRusia
CourtSupreme Court (Russia)
JudgeDemidov,Lebedev

Russian Federation, Supreme Court.

(Lebedev, President; Demidov, Judge)

Resolution No 5 on Application by Courts of General Jurisdiction of Commonly Recognized Principles and Norms of International Law and International Treaties of Russian Federation

Relationship of international law and municipal law Treaties Customary international law Commonly recognized principles and norms of international law Definition and content Norms recognized as mandatory by international community as whole Principle of universal respect for human rights Principle of fair implementation of international obligations International treaties of Russian Federation Application by courts Treaties having direct effect in Russian Federation Treaties to which Russian Federation consenting to be bound having precedence over laws of Russian Federation Treaties requiring implementation in Russian Federation Vienna Convention on the Law of Treaties, 1969 European Convention on Human Rights, 1950 and Protocols Commonly recognized principles and norms of international law and treaties being component part of legal system of Russian Federation Article 15(4) of Constitution of Russian Federation Federal Law No 101-FZ of 15 July 1995 on International Treaties of the Russian Federation Commitment to principle of fair implementation of international obligations Application of international law in Russian Federation Clarifications to ensure correct and uniform application

Treaties Function Definition Interpretation Application Effect Treaties having direct effect Official publication of treaties Consent to be bound by treaty Entry into force Treaties to which Russian Federation consenting to be bound having precedence over laws of Russian Federation Treaties requiring implementation Treaties obliging States to make certain offences punishable under national law Criminal Code of Russian Federation Federal Law No 101-FZ of 15 July 1995 on International Treaties of the Russian Federation Constitution of Russian Federation Vienna Convention on the Law of Treaties, 1969

State succession Treaties Russian Federation and USSR Treaties signed by USSR constituent part of legal system of Russian Federation

Human rights Rights and liberties of man Rights in conformity with commonly recognized principles and norms of international law and international treaties of the Russian Federation having direct effect in jurisdiction of Russian Federation European Convention on Human Rights, 1950 and Protocols Entry into force in Russian Federation Federal Law on Ratification of 30 March 1998 Interpretation and application European Court of Human Rights Articles 17(1) and 18 of Constitution of Russian Federation The law of the Russian Federation

Summary:1The facts:The Plenum of the Supreme Court clarified general jurisdiction practice concerning the application of commonly recognized principles and norms of international law and treaties in order to ensure the correct and uniform application of international law.

Article 15(4) of the Constitution of the Russian Federation (the Constitution) provided that the commonly recognized principles and norms of international law and international treaties of the Russian Federation were a component part of its legal system. Federal Law No 101-FZ of 15 July 1995 on the International Treaties of the Russian Federation (the Federal Law) stipulated that the Russian Federation, advocating the observance of treaty obligations and common norms, confirmed its commitment to the basic principle of international law, the principle of fair implementation of international obligations.

Held:(1) The rights and liberties of man in conformity with commonly recognized principles and norms of international law and international treaties of the Russian Federation had direct effect within the jurisdiction of the Russian Federation in accordance with Articles 15(4), 17(1)2 and 183 of the Constitution. Commonly recognized principles of international law were those norms accepted and recognized by the whole international community as

mandatory, in particular the principles of universal respect for human rights and fair implementation of international obligations. A commonly recognized norm was a rule of conduct accepted and recognized by the whole international community as mandatory. The content of such principles and norms might be found in documents of the United Nations and its specialized agencies (pp. 7301)

(2) International treaties were important in promoting international cooperation, facilitating broader international relations, and protecting human rights and basic freedoms. The treaties signed by the USSR with respect to which the Russian Federation continued to exercise the USSR international rights and obligations as State successor were also a constituent part of the legal system. Pursuant to Article 2(a) of the Federal Law, an international treaty was that signed with a foreign State or States or an international organization, in writing, and regulated by international law regardless of whether it was contained in one or several documents and irrespective of its name. Treaties could be concluded on behalf of the government or federal executive government bodies (p. 731).

(3) Pursuant to Article 5(3) of the Federal Law, provisions of officially published international treaties that did not require implementation had direct effect, giving rise to rights and obligations for national law entities. Other provisions had to be implemented by a national act. Treaties obliging States to amend their national laws could not have direct effect (pp. 7312).

(4) An international treaty entered into force in accordance with the procedure and on the date stipulated by the treaty or as agreed by the negotiating States. Failing that, it entered into force as soon as consent to be bound had been established for all negotiating States in accordance with Article 24 of the Vienna Convention on the Law of Treaties, 1969. The Russian Federation could consent to be bound by signing the treaty, exchanging the documents establishing it, ratifying, approving, adopting or acceding to it, or by any other way agreed upon by the treaty parties pursuant to Article 6 of the Federal Law. Courts could apply an international treaty provided that the Russian Federation had consented to be bound by it and it had entered into force for the Russian Federation (p. 732).

(5) Courts could apply international treaties that had been officially published in the Legislative Acts Collection or the Bulletin of International Treaties pursuant to Article 15(3) and (4) of the Constitution and Article 5(3) of the Federal Law. Interagency agreements were published by federal executive bodies in their official publications. USSR treaties acceded to by the Russian Federation had been published in official publications of the Supreme Soviet of the USSR, Council or Cabinet of Ministers of the USSR (pp. 7323).

(6) Courts, including military courts, were to apply international treaties that had a direct and immediate effect in resolving civil, criminal and administrative cases provided that those treaties set out rules not already provided in Russian legislation (pp. 7334).

(7) International treaties obliging States to make certain offences punishable under national law, such as the International Convention against the Taking of Hostages, 1979, were not to be applied directly unless so stipulated by the Criminal Code of the Russian Federation. Article 11(4) of the Criminal Code provided that the criminal liability of...

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