Acts of international organizations as sources of international law. Implementation in the Russian Federation of acts of bodies of international organizations, compare international standards on trademarks and the provisions of part four of the civil code of the Russian Federation Implementation of acts of international organizations
The right to conclude international treaties (contractual legal capacity) is the most important element of international legal personality, a necessary attribute of the main subjects of international law, primarily states. Every state has the legal capacity to conclude international treaties. The legal capacity of international organizations to conclude treaties is governed by the rules of the organization concerned.
The conclusion of an international treaty is a process consisting of a number of successive stages, the main of which are the agreement on the text of the treaty and various ways of expressing the consent of the parties to be bound by the treaty. They, in turn, consist of a number of sub-stages, such as signing, ratification, approval, accession, etc. It is not necessary that every treaty go through all the sub-stages, but any treaty goes through the stage of agreeing on the text and one or another form in which consent is expressed state or international organization to be bound by the treaty. Features of the procedure and stages of concluding international treaties are determined both by the content of the treaty and by the composition of its participants. For example, international organizations do not apply ratification.
States conclude international treaties in the person of their highest state bodies established in constitutions and other domestic regulations. International organizations conclude agreements through their competent bodies specified in their charters or other normative acts of these organizations.
There are 2 main stages:
1. Development of an agreed text of the treaty (Tunkin - "harmonization of the wills of states").
Usually, international treaties are negotiated through diplomatic channels before being concluded. A special negotiating commission may be established (consisting of representatives of states that have received a mandate to negotiate or otherwise act). Without authorization may be: President, Prime Minister, Minister of Foreign Affairs: only they can be participants without authorization. Further, the text of the agreement is developed (before that it was only a draft) through concessions, mutual compromise. That is why this stage is also called authentication: this is the so-called. a line after which it is no longer possible to change the text. This is fixed even in initialing: this is the affixing of the initials of authorized persons, it is page-by-page (in special cases - article-by-article). Initialing prohibits further changes.
Second form of authentication– ad referendum. –: conditional signing that needs approval (usually government approval).
Third form- signing the text of the treaty that needs to be ratified (this is a vote, the adoption of a resolution, the annex to which is the text of the treaty (this is in relation to international organizations)). Can be adopted by voting:
the vast majority (more than 50%),
qualified majority (2/3, 3/4...),
on the principles of consensus (no objection, even if there are abstentions),
unanimous (all in favor, no abstentions),
· "in the package" - unanimity - in the most important issues, and the rest can be compromised.
oclomation (emotions)
“with their feet” (dissenters go out).
2). expression of consent to be bound by this treaty for a given state.
Forms (substages):
¾ signing,
¾ ratification,
¾ connection,
¾ assertion,
¾ exchange of instruments of ratification,
¾ conclusion.
1) Signature - comes into force after signature, unless ratification is provided. If it is provided, then signing is only authentication.
2) Ratification - after it, the states will have to refrain from actions that deprive the treaty of object and purpose.
Alternative principle: the sequence of signing (if the signature of the Russian Federation is on the left, and France is on the right, then this is a Russian treaty (i.e. in Russian)).
If a multilateral treaty, then the states are arranged in alphabetical order (the signature of the most interested state may be in the first line).
Ratification is the approval of a treaty by an authorized body.
In the Russian Federation - through the adoption of the Federal Law (in the USSR - the Presidium of the Armed Forces), approved by the Federation Council (the period is 14 days for mandatory consideration, and not according to the principle of the usual Federal Law, if it is not considered in 14 days, then automatically for the signature of the President).
Law on International Treaties of the Russian Federation (1995) - a list of treaties with mandatory ratification, with unnecessary ratification.
Treaties must be ratified:
On fundamental rights/freedoms,
On issues requiring amendments to federal legislation (only ratified treaties (in case of conflict) have force higher than laws than the law),
On territorial delimitation (for example: the question of the Kuriles. The President can conclude an appropriate agreement only if it is ratified),
On the participation of the Russian Federation in international entities for which the powers of the Russian Federation are transferred.
On issues of defense capability and arms reduction.
Ratification has 2 sides:
a) internal - the adoption of an internal act of ratification.
b) external - signing by the President of the instrument of ratification, and their exchange between the participants.
4) Exchange of instruments of ratification.
If the state disagrees on something, then a reservation: this is an official statement of the state in which it cancels or changes certain provisions of the treaty. A reservation may only be in writing at any sub-stage of the expression of consent to be bound. Reservations are possible only to multilateral treaties.
Reservation mode:
If State A has made a reservation, then State B objected to it, and C is silent, then:
the entire contract between A and B is invalid,
· between A and B, only this provision is invalid.
A reservation may be withdrawn at any time without the consent of the objecting States being required.
Reservations are not allowed:
1. if it is provided for in the contract itself
2. Reservations M.b. only to articles no.
3. reservations may be to everyone except…. articles"
4. Reservations are inadmissible to the object and purpose of the treaty.
5 ."Conclusion"- the final expression of consent in any form. After the conclusion, they are registered with the UN Secretariat (Article 102 of the UN Charter), i.e. this is bringing the treaty to the attention of the world community, otherwise it cannot be referred to.,
6 . Accession.: the state did not participate in the development of the treaty, it was created even before the accession of this state.
As you know, the Constitution of the Russian Federation limits the international component of the country's legal system to two "elements": generally recognized principles and norms and international treaties.
Nevertheless, everything that is outside the scope of law - recommendations of bodies of international organizations, acts of international conferences, model acts ("soft" law) - actively "intruded" into the law enforcement sphere. In the mid-1990s, when the development and implementation of the constitutional principle was in its infancy, the appearance in court decisions along with treaties of non-legal international norms raised perplexing questions: allegedly, the courts, primarily the Constitutional Court of the Russian Federation, contrary to the Constitution, “declared” the legal rules of the advisory character.
Indeed, sometimes there are curiosities when the courts “include” recommendatory acts in the MP (and sometimes even call them international legislation): the Manual of Procedures and Criteria for Determining Refugee Status of the Office of the United Nations High Commissioner for Refugees of 1979, the Declaration on Social and Legal principles relating to the protection and well-being of children, especially in the transfer of children for upbringing and adoption at the national and international levels (approved by the Resolution of the UN General Assembly on December 3, 1986), the Charter of Social Rights and Guarantees of Citizens of Independent States (approved by the resolution of the Interparliamentary Assembly of the CIS ), the Universal Declaration of Human Rights of 1948, etc. 1
In general, as the analysis of practice shows, the courts have considered and are considering such norms and acts precisely as recommendations.
Thus, the judge of the Supreme Court of the Russian Federation in the decision on the application of K. to invalidate certain points of the resolutions of the Government of the Russian Federation of August 12, 1999 No. 921 and of March 31, 2001 No. 247 as contradicting federal legislation, as well as the Model Agreement between the UN and the states -members providing personnel and equipment for UN peacekeeping operations, noted that the Model Agreement is only the basis for the development of relevant individual agreements and does not contain the rules of the MP.
The general trend is that recourse to international recommendatory acts has become a daily practice in all types of courts. Court decisions accompanied by references to, say, the Universal Declaration of Human Rights, the Declaration of Principles of International Law, the Final Act on Security and Cooperation in Europe and other OSCE (CSCE) documents, many of whose provisions have acquired the features of customary law or are norms in the process of becoming , look more weighty and reasonable.
Strictly speaking, the courts do not apply them, but use them to clarify the concepts used, formulate and justify their position, confirm or strengthen the legal argument. And the questions sometimes raised in the literature about what their application order is, whether they are self-fulfilling or not, hardly make sense.
Involvement in judicial activities of a huge "layer" of international recommendatory norms is a solid step in the practical development of the constitutional principle of the international component of the Russian legal system.
recommendatory acts. As part of the guiding clarifications to lower courts, the Supreme Court of the Russian Federation also interprets the relevant international recommendations. The Decree of the Plenum of the Court dated February 24, 2005 No. 3 “On Judicial Practice in Cases for the Protection of the Honor and Dignity of Citizens, as well as the Business Reputation of Citizens and Legal Entities” draws the attention of the courts to the provisions of the Declaration on the freedom of political discussion in the media, adopted February 12, 2004 at the 872nd meeting of the Committee of Ministers of the Council of Europe, regarding public political discussion and criticism in the media (para. 9). Later, the Supreme Court of the Russian Federation published a review of the practice of considering this category of cases by courts 1 . He noted that the courts were guided not only by the law, but also by international standards, in particular the Declaration, as well as the Resolution of the Parliamentary Assembly of the Council of Europe 1165 (1998) on the right to privacy, and gave an interpretation of some of its provisions.
The range and list of international recommendatory acts used is very wide. This once again indicates that the courts very often turn to them on a variety of issues and branches of law to argue their position on the cases under consideration.
These instruments include: the Declaration on the Human Rights of Persons Who Are Not Citizens of the Country in which they Live; Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; Recommendation of the Committee of Ministers of the Council of Europe No. I (85) 11 “On the position of the victim in criminal law and procedure”; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; Recommendation No. I 16 (2003) of the Committee of Ministers of the Council of Europe to member states on the enforcement of administrative and judicial decisions in the field of administrative law; Resolution No. 3 of the XXIV Conference of European Ministers of Justice "Common approaches and means to achieve effective enforcement of judgments"; Council of Europe Parliamentary Assembly Recommendation 1687 (2004) Combating terrorism through culture; Parliamentary Assembly of the Council of Europe Recommendation 1704 (2005) “Referendums: Towards good practice in Europe”; UN Global Counter-Terrorism Strategy, Bangalore Principles of Judicial Conduct (Annex to UN ECOSOC Resolution 2006/23 of 27 July 2006); Basic principles of the independence of the judiciary; Council of Europe Parliamentary Assembly Recommendation 818 (1977) on the situation of the mentally ill; Declaration on Social and Legal Principles Concerning the Protection and Welfare of Children, Especially in the Placement and Adoption of Children at the National and International Levels, etc.
To strengthen their arguments, the courts sometimes resort to "generally accepted international practice", using the recommendatory acts of international organizations in which Russia does not participate. So, back in 1998, the Constitutional Court of the Russian Federation, in the case on the verification of the constitutionality of the provisions of the Fundamentals of the Legislation of the Russian Federation on Notaries, noted that the methods of control of notarial chambers provided for in them over the activities of notaries are consistent with the resolution of the European Parliament of January 18, 1994. In another case, the Court referred on the 1988 Code of Conduct for Lawyers in the European Community 1
A special and rare case is the citation of decisions of international bodies as mere information for information, which, however, may well affect the development of practice. In this capacity, the decision of the UN Committee on Human Rights No. 1310/2004 on Russia's violation of the requirements of paragraphs 1 and 7 of Art. 14 of the International Covenant on Civil and Political Rights in court decisions on charges of B.
International model standards. A special kind of rules and norms that the courts resort to to strengthen the argumentation when substantiating a decision in a case are the provisions of draft regulations adopted by the bodies of unions, commonwealths, allied states as samples (models) of legislative acts of participating states (model norms). They reflect the coinciding or similar positions of these states, contain developed formulations, and are a stage in the possible emergence of future legal norms (law in the making). There are reasons to believe that model regulation tends to develop. Not only the model norms themselves are developed and adopted, but also agreements on them (“rules on norms”). Thus, within the framework of the EurAsEC, an Agreement was adopted on the status of the Basic Legislation of this Community, the procedure for their development, adoption
and implementations 1 . As future legal norms, model norms are also used for argumentation in court cases.
In the above ruling on the case of violation of constitutional rights and freedoms by the provisions of the Law of the Russian Federation "On currency regulation and currency control", the Constitutional Court of the Russian Federation correlated the requirements for goods transported across the border with the Fundamentals of the Customs Legislation of the CIS Member States of 1995.
Later, a judge of the Supreme Court of the Russian Federation resorted to a similar argument when considering M.'s supervisory complaint about the revision of court decisions on his claim to invalidate the decision of the customs authority on the payment of customs duties. Moreover, the judge noted that this regulation is generally accepted in international practice, and referred to the International Convention on the Simplification and Harmonization of Customs Procedures of 1973, the EU Customs Code of 1992. It must be assumed that he made such a reference, pursuing a purely comparative legal goal, since Russia is not a member of them.
Individual and normative decisions of bodies of international organizations. Courts often turn to the decisions of bodies of international law enforcement organizations. The judgments of the ECtHR have a special status and role, and they will be given special attention. Here we also note cases of references to decisions of other bodies in the acts of Russian courts.
Sometimes there are references to decisions of the European Commission and the EU Court of Justice, which in principle have no legal significance for Russia. It is obvious that the only role of such examples is to reflect experience and approaches in resolving such cases, and, accordingly, to strengthen the argument of the court.
In one of such cases, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation considered the cassation appeal of the public organization Dianetics Center against the decision of the Supreme Court of the Republic of Bashkortostan to liquidate this organization as carrying out educational and medical activities without licenses in violation of the law and violating human rights and freedoms. In addition to a detailed assessment of the legislative framework, the Collegium, in support of its conclusions, cited the relevant provisions of the ECHR, as well as the decision of the ECHR on a similar issue. And, apparently, to reinforce the conclusions, she noted: “The decision taken by the court to liquidate the Dianetics Center of the Republic of Bashkortostan is consistent with the practice of decision-making in such cases in the European Community”, referring to the decision of the European Commission of December 17, 1968. 1
A distinctive feature of UN Security Council resolutions is that they are addressed not to specific people or organizations, but to member states. Hence, at first glance, they have no place in the decisions of domestic courts. Nevertheless, such resolutions are periodically mentioned in the jurisprudence.
Thus, assessing the constitutionality of the provisions of the legislation related to the burial of persons whose death occurred as a result of the suppression of a terrorist act committed by them, the Constitutional Court of the Russian Federation resorted not only to a literal, formal legal interpretation of the contested provisions, but also to a broader, systemic interpretation from the point of view of goals of counter-terrorism policy in the domestic and global spheres. In this context, the Court observed that “The United Nations Security Council, in Resolution 1624 (2005), adopted on 14 September 2005 at the level of Heads of State and binding, emphasizes the importance of taking appropriate measures at the national and international levels to protect the right to life.”
In the case of checking the constitutionality of Art. 188 "Smuggling" of the Criminal Code of the Russian Federation, the Court concluded that the established procedure for moving currency across the customs border is consistent with international standards developed with the participation of Russia, in particular with the recommendations of the Financial Action Task Force on Money Laundering (FATF). “The UN Security Council, in Resolution 1617 (2005) of July 29, 2005, urged all UN member states to comply with this and other FATF recommendations” 1 .
In these and other cases, resolutions of the UN Security Council, decisions of other international bodies serve to substantiate the courts' final assessment of the situation and their own decision.
Decisions of the Economic Court of the CIS have a different meaning. Being binding on the parties to a particular dispute, they, moreover, take on the character of a general rule. In Resolution No. 8 of June 11, 1999 “On the Validity of International Treaties of the Russian Federation in Relation to Civil Procedure Issues”, the Plenum of the Supreme Arbitration Court of the Russian Federation drew the attention of the courts, in particular, to the rule for collecting state duty when considering economic disputes between subjects of different states, formulated in decision of February 7, 1996 No. 10/95 C1 / 3-96 (paragraph 15 of the decision).
Decisions of an imperative binding nature have the right to be taken by the bodies of the EurAsEC. Here is the decision of the Commission of the Customs Union dated November 27, 2009 No. 132 "On the unified non-tariff regulation of the customs union of the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation" . The Commission formulated a number of direct specific instructions to the governments of these countries, state executive bodies, and the Secretariat. Another example is the decision of the Interstate Council of the EurAsEC dated July 5, 2010 No. 51 “On the agreement on the procedure for the movement of cash and (or) monetary instruments by individuals across the customs border of the customs union” 1 . The Council decided: to accept the Treaty; to the governments of member states "to ensure that national legislation is brought into line with the Treaty".
In pursuance of such decisions, federal bodies adopt implementing acts. Let us mention, in particular, the order of the Ministry of Industry and Trade of the Russian Federation of June 9, 2010 No. 489 on amending the order of November 18, 2008 No. 335 based on the decision of the Interstate Council of the EurAsEC of November 27, 2009 and the letter of the Federal Customs Service of Russia dated 6 July 2010 No. 01-11/33275 "On Passenger Customs Declaration" based on the decision of the Commission of the Customs Union of June 18, 2010
Judgments of the European Court of Human Rights
A solid array of the international component of the Russian legal system, in addition to its normative part (generally recognized principles and norms and international treaties), is represented by the judgments of the ECtHR. Of course, there is no mention of them in the Constitution of the Russian Federation, since Russia joined the Council of Europe and recognized the jurisdiction of the Court after the adoption of the Constitution. Nevertheless, over the past period, this array has quite tangibly, even powerfully “intruded” into the legal system, mainly into its practical part, thanks primarily to the courts.
In this sense, the courts again had a great influence on the development of the constitutional principle of the international component of the country's legal system.
The federal law on the ratification of the ECHR outlined the specific limits of the recognized jurisdiction of the Court: it is obligatory for Russia on the interpretation and application of the Convention and its Protocols in cases of alleged violation by Russia of the provisions of these treaty acts, when the alleged violation took place after their entry into force against Russia 1 . Nevertheless, after years of “work” of the Russian courts with the decisions of the ECtHR, the Constitutional Court of the Russian Federation, interpreting this provision of the Law, gave a significant assessment of their role in the legal system of Russia: “Thus, like the Convention for the Protection of Human Rights and Fundamental Freedoms, the decisions of the European Court on human rights - insofar as they, based on the generally recognized principles and norms of international law, give an interpretation of the content of the rights and freedoms enshrined in the Convention ... - are an integral part of the Russian legal system ...(highlighted by me. - S. M.)".
In fact, the range of judgments of the ECtHR used by the Russian courts turned out to be much wider both in terms of time and subject matter than it is outlined by the Law on Ratification of the Convention. As practice has shown, the courts did not ask themselves whether or not they have an obligation (if this Law is interpreted formally and legally) to take into account other judgments of the ECtHR, except for those binding on Russia. The list of emerging issues is far from being limited to the recognition and enforcement of his rulings against Russia, and it is hardly possible to administer justice, taking into account some rulings and “turning a blind eye” to others. It is precisely the majority of the judgments of the ECtHR used and cited by the courts that apply to other countries.
The courts perceive the decisions of the ECHR (refer to them) in various aspects: when assessing specific concepts or situations, when interpreting the ECHR, to take into account the legal positions of the ECHR and its case law, as a basis for reviewing judicial acts.
The role of guiding explanations of the highest judicial instances. Documents adopted by the upper echelons of the judiciary provide guidance to lower courts in order to ensure uniform application of the law.
Apparently, after the adoption of the Law, which ratified the Convention and recognized the mandatory jurisdiction of the ECHR, the Supreme Arbitration Court of the Russian Federation was the first to react. In order to ensure the development of arbitration practice in line with the Convention and its application, the ECtHR, the Supreme Arbitration Court of the Russian Federation, sent the mentioned information letter “On the main provisions applied by the European Court of Human Rights in the protection of property rights and the right to justice” to arbitration courts.
In Resolution No. 17 of March 12, 2007 “On the Application of the Arbitration Procedure Code of the Russian Federation in the Review of Judicial Acts that Have Enforced Due to Newly Discovered Circumstances,” the Plenum of the Supreme Arbitration Court of the Russian Federation determined the circle of persons who may apply for review of court decisions in connection with the judgment of the ECtHR.
The central document on the issues under consideration for the courts of general jurisdiction is also the aforementioned resolution of the Plenum of the Supreme Court of the Russian Federation dated October 10, 2003 No. 5. Despite the specific name of the resolution, a number of its paragraphs are devoted to the ECtHR and the implementation of its decisions and directly prescribe: application by the courts
The ECHR must be implemented taking into account the practice of the ECtHR in order to avoid any violation of the Convention (para. 10).
The legal positions and acts of the ECtHR are named among the mandatory ones for consideration by the courts also in the decisions of the Plenum of the Supreme Court of the Russian Federation dated December 19, 2003 No. 23 “On the Judgment”, dated February 24, 2005 No. 3 “On Judicial Practice in Cases of Protection of Honor and Dignity of Citizens, as well as the Business Reputation of Citizens and Legal Entities”, dated February 6, 2007, No. 6 “On Amending and Supplementing Certain Resolutions of the Plenum of the Supreme Court of the Russian Federation on Civil Cases”, in the “Review of Judicial Practice in Considering Cases for the Protection of Honor by Courts and dignity" 1 and others.
The Constitutional Court of the Russian Federation, as an independent independent branch of the judicial system, determines the forms of appeal to the positions and acts of the ECtHR in its specific decisions and rulings. And, as can be judged, it is the most active in this regard among all types of courts. In one case, he emphasized his appointment and outlined the limits of the powers of his own and the ECtHR.
Citizens appealed to the Constitutional Court of the Russian Federation with complaints about the verification of the constitutionality of a number of provisions of the Code of Civil Procedure of the Russian Federation and the Law of the Russian Federation "On Psychiatric Care and Guarantees of the Rights of Citizens in its Provision". Moreover, the complaints were filed after the ECtHR in the case “Shtukaturov v. Russia” (one of the applicants) stated a violation of his rights to freedom and personal integrity, a fair trial, enshrined in the ECHR.
Despite the final judgment of the ECtHR and its compulsory jurisdiction, the Constitutional Court of the Russian Federation accepted the complaints for proceedings, stating that the assessment of the constitutionality of legislative provisions is its exclusive prerogative. “Since such verification cannot be carried out either by other domestic judicial bodies or by any interstate body, including the ECtHR, the Constitutional Court of the Russian Federation recognizes the applicants’ complaints, filed by their representatives, as admissible.” It should be noted that, for its part, the ECHR, in cases on complaints that mention the Constitutional Court of the Russian Federation, until recently did not try to interfere with its powers. An unprecedented example was the judgment of October 7, 2010 in the case “Konstantin Markin v. Russia”, in which the ECHR decided to “evaluate” and criticize the arguments of the Constitutional Court in its decision on the applicant’s complaint, as well as Russian legislation, which, according to the ECHR, is incompatible, with the convention. This has been sharply assessed as being clearly outside the scope of the competence established by the ECHR 1 .
Judgments of the ECtHR as an example of the assessment of specific concepts or situations. When considering cases, courts sometimes evaluate certain concepts and situations from the point of view of law, citing similar assessments given by the ECtHR as an argument.
Thus, in the case of the liquidation of the public organization Dianetics Center, one of the main questions was whether the activities of the Center were educational, in order to then correlate it with the requirements of the law. Considering the Center’s cassation appeal against the decision of the previous court instance, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation concluded: “The understanding of education presented in the court decision corresponds to the legal position of the European Court of Human Rights, according to which education is considered as a continuous learning process. In support of this, the judgment of the Court in the case of Campbell and Cosans v. United Kingdom (Eur. Court. H.R. Campbell and Co-sans v. United Kingdom, Judgment of 25 February 1982. Series A. No. 48) should be cited.
Use of the judgments of the ECtHR in the interpretation of the Convention by the courts. Courts often consider judgments of the ECtHR as an authoritative interpretation of the norms of the ECHR and use them to substantiate their positions and decisions. Since such an interpretation enriches the content of the norm, it can be assumed that the relevant parts of the decrees have elements of rule-making.
The Constitutional Court of the Russian Federation has repeatedly appealed to the interpretation of the ECHR, paragraph 1 of Art. 6 of the ECHR (the right to a fair trial), which indicates an essential element: the execution of a decision of any court is an integral part of the “court”, the violation of the “right to a court” may take the form of a delay in the execution of the decision (another element of this article is the possibility of the preliminary participation of administrative bodies in exercising a jurisdictional function); Art. 5 and 6 on the liberty and security of persons of unsound mind and their right to a fair trial; Art. 1 of Protocol No. 1 to the Convention on the concept of “own property” 1 . His interpretation of paragraph 1 of Art. 8 of the ECHR on the right to respect for personal and family life was given by the Supreme Court of the Russian Federation.
Legal positions. Russian courts have worked out the practice of comparing (correlating) the legal positions they develop with the positions of the ECtHR. The latter help the perception and understanding of the meaning of the provisions of the ECHR, its adjustment, the development of judicial practice in line with the norms of the Convention and the activities of the ECtHR, sometimes even the amendment of legislation. In Resolution No. 2-P of February 5, 2007, the Constitutional Court of the Russian Federation, as already mentioned, prescribed that the federal legislator should, “taking into account the legal positions of the European Court of Human Rights ... bring the legal regulation of supervisory proceedings ... into compliance with the international legal standards recognized by the Russian Federation”.
The Plenum of the Supreme Court of the Russian Federation periodically draws attention to the importance of legal positions: in a general decision of October 10, 2003 No. 5 (p. 12), as well as in decisions on specific categories of cases 1 .
Without taking into account the legal positions of the ECtHR, a literal interpretation of the provisions of the Convention may lead to different results in their application. In this context, we note, in particular, some of his positions used by the courts in specific cases.
The requirements of legal certainty and stability are not absolute and do not prevent the resumption of the proceedings on the basis of newly discovered circumstances; the state cannot use such legal regulation that would lead to inequality between public legal entities and individuals; the right to freedom of speech under Art. 10 of the ECHR must be considered in the light of the right to free elections, they are interrelated; the principle of legal certainty means that neither party can request a review of an effective ruling only for the purpose of holding a rehearing and obtaining a new ruling; the right to form an association under Art. 11 ECHR (although it only mentions trade unions) it is possible for citizens to create a legal entity in order to act together in the area of their interests; the right to a fair trial (art. 6) implies that a binding decision cannot be changed by a non-judicial authority; education is seen as a continuous learning process.
The role of the case law of the ECtHR. As already mentioned, the Federal Law on the Ratification of the ECHR and the Recognition of the Compulsory Jurisdiction of the ECtHR actually opened the way for the widespread introduction of the case law of the Court into the Russian legal system. Moreover, in this aspect, the Russian courts rely not only on the binding judgments of the ECtHR adopted in relation to Russia, but also on any others that may relate to the subject of the case under consideration or the relevant article of the Convention.
Referring to the precedents of the ECtHR, judging by the results of the study of cases, has become everyday and habitual in the activities of the courts 1 . Like the interpretation of the provisions of the Convention, legal positions and precedents equally help Russian courts in clarifying the arguments in the case, forming their own sustainable practice on similar or coinciding issues. From a formal legal point of view, the judgments of the ECHR play a subsidizing role: the courts cite them to confirm and reinforce their assessments and conclusions (“this position is confirmed by the practice of the ECHR”, “it also follows from the practice of the European Court”, “such a conclusion corresponds to the practice of the Court”, “ the same approach is followed by the ECtHR”, etc.). In fact, they often "lead" the courts to substantiate and make their own decision on the case under consideration.
The particular importance of taking into account the precedent decisions of the ECtHR is seen in the fact that they sometimes not only apply, but also develop the provisions of the Convention. So, in the case of checking the constitutionality of Part 3 of Art. 292 of the Arbitration Procedure Code of the Russian Federation, the Constitutional Court of the Russian Federation turned to the legal position expressed by it earlier: it is not an unconditional basis for refusing to accept a complaint if the deadline set for its filing is validly missed. To confirm the validity of its position, the Court correlated it with the practice of the ECtHR and found that the latter also “does not consider this term to be the maximum permissible (precautionary) period for protecting the violated right, although the Convention itself does not contain rules on the restoration of a missed deadline(highlighted by me. - S. L /.) ".
In its ruling dated July 16, 2007 No. 11-P on the case of reviewing the constitutionality of certain provisions of the Federal Law "On Political Parties" in connection with the complaint of the Communist Party, the Court noted that the limits of discretion of the legislator in regulating the creation and activities of political parties are predetermined by constitutional rights and freedoms in particular the right to associate, including in political parties. This right is inalienable within the meaning of Art. 11 of the ECHR, although it speaks only of trade unions, which has been repeatedly confirmed by the case law of the ECtHR.
Sometimes judgments of the ECtHR play a “negative role” when they are used as an “unsuitable” means of argumentation. In the aforementioned decision of December 21, 2005 No. 13-P on the verification of the constitutionality of the Law on the General Principles of Organizing the Authorities of the Subjects of the Federation, the Constitutional Court of the Russian Federation cited the decision of the ECtHR in the case of Gitonas v. Greece” dated July 1, 1997 as an example of the application of Art. 3 of Protocol No. 1 to the ECHR. But both the resolution and the article refer to elections only to legislative bodies, while the citizens' complaint and, accordingly, the subject matter of the case relate to the election of senior officials of the constituent entities of the Russian Federation. The court, however, used them as an argument in a case on a different subject, actually substantiating, with the help of an inappropriate argument, the compatibility of the changes made to this Law with the Constitution of the Russian Federation.
Introduction into law enforcement practice of generally recognized principles applied by the ECtHR. One of the most important values of the judgments of the ECtHR is that they contain not only the interpretation of the provisions of the Convention, the legal positions and case law of the Court, but also the generally recognized principles on which justice should be based.
It is significant that Russian courts appeal both to positive law and legal positions, and to principles. Thanks to this, the general principles of law and the generally recognized principles of international law are actively introduced into the country's legal system, primarily into law enforcement practice, and become a "familiar" normative basis for decision-making along with legislation.
The Supreme Arbitration Court of the Russian Federation in an information letter dated December 20, 1999 "On the main provisions applied by the European Court of Human Rights in the protection of property rights and the right to justice" noted the relationship between the competences of national courts to resolve disputes and the ECtHR to consider complaints of violation of property rights , recommended to take into account in the administration of justice, in particular, the following principles from which the ECtHR proceeds: the balance of private and public interests, access to court, dispute resolution by an independent court and compliance with the statutory procedure, impartiality, fairness of the trial, reasonableness of its time and openness.
The Plenum of the Supreme Court of the Russian Federation in its resolution of October 10, 2003 No. 5 gave a definition of the concept of universally recognized principles of MP. In rulings on specific issues, the Plenum orients the courts to certain groups of principles. So, in the resolution of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, he drew the attention of the courts to the obligation, when applying a disciplinary sanction to an employee, to comply with the general principles of legal responsibility recognized by Russia of justice, equality, proportionality, legality, guilt, humanism; in the resolution of June 19, 2006 No. 15 “On issues arising from the courts when considering civil cases related to the application of copyright and related rights legislation” - to the list of international principles for the protection of authors' rights enshrined in the Berne Convention for the Protection of Literary and artistic works. In the Review of Normative Acts and Judicial Practice Concerning Ensuring Human Rights to Liberty and Personal Inviolability, 1 the Supreme Court of the Russian Federation listed documents containing generally recognized principles and norms in this area.
The Constitutional Court of the Russian Federation regularly correlates its legal assessments with the principles enshrined in the decisions of the ECtHR: the independence of the judiciary, the provision of justice for human rights, fair justice, the finality and stability of decisions that have entered into force, legal certainty, etc. 1
Judgments of the ECtHR as a basis for the revision of judicial acts. Of all the above forms of “presence” of ECtHR decisions in the legal system of the Russian Federation, their influence on law enforcement practice, this form, obviously, is most consistent with the content of the Federal Law on Ratification of the ECHR. Recognition of the jurisdiction of the Court as binding on the interpretation and application of the Convention not only implies, in the event of a decision against Russia, the obligation to pay compensation, but may also lead to a change in legislation, and in the judicial sphere, a review of the decisions made.
Constitutionality Part 2 Art. 392 of the Code of Civil Procedure of the Russian Federation it was precisely in this aspect that the citizens challenged in their complaints to the Constitutional Court of the Russian Federation. In its decision of February 26, 2010 No. 4-P, the Court came to exactly this conclusion: taking into account the proclaimed Art. 15 (part 4) of the Constitution of the Russian Federation of the priority of the rules of an international treaty of the Russian Federation, this provision of the Code of Civil Procedure of the Russian Federation cannot be considered as allowing the court to refuse to review its decision if the ECtHR has established a violation of the provisions of the Convention when considering a specific case.
In its resolution of March 19, 2010 No. 7-P, for the same reasons, the Constitutional Court of the Russian Federation found Part 2 of Art. 397 Code of Civil Procedure of the Russian Federation.
In the Code of Criminal Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation, the judgments of the ECtHR are considered as grounds for reviewing court decisions due to new circumstances (Articles 413 and 311, respectively).
The Code of Civil Procedure of the Russian Federation does not provide for such a basis, however, the revision is quite acceptable by analogy with law - based on the principles of legislation (Article 1) and the constitutional principle under consideration. Otherwise it would be illogical and contrary to the Constitution of the Russian Federation.
Two rulings of the Presidium of the Supreme Court of the Russian Federation can serve as an example of such an impact of ECtHR judgments. When considering criminal cases, he canceled court decisions: in one case, in connection with the decision of the ECHR of June 9, 2005, in which a violation of Art. 1 Protocol No. 1 to the ECHR 1 ; in the other, in connection with the ruling of 13 July 2006, which found a violation of paragraph 6 of § 3 and § 1 of Art. 6 of the Convention. Moreover, in the second decision, the Presidium's conclusion was placed in the heading of the decision (obviously, to guide the courts when considering subsequent similar situations).
- See: Russian justice. 2003. No. 3. S. 6-8; Universally recognized principles and norms of international law, international treaties in the practice of constitutional justice: materials of the All-Russian meeting / ed. M. A. Mityukova et al. M., 2004. S. 528-531.
- See, for example: Generalization of judicial practice in cases involving the application of legislation on refugees and internally displaced persons// Air Force of the Russian Federation. 2000. No. 5; rulings of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated January 12, 1999 No. 2-G99-3, dated April 28, 2000 No. 50-G00-5; resolution of the Constitutional Court of the Russian Federation of March 15, 2005 No. 3-P; determination of the Constitutional Court of the Russian Federation of April 4, 2006 No. 113-0.
- Russian Air Force. 2009. No. 1.
- Russian Air Force. 2005. No. 4; 2007. No. 12.
- See: resolutions of the Constitutional Court of the Russian Federation of December 8, 2003 No. 18-P; dated May 11, 2005 No. 5-P; dated December 26, 2003 No. 20-P; dated July 14, 2005 No. 8-P; dated March 21, 2007 No. 3-P; dated June 28, 2007 No. 8-P; dated February 28, 2008 No. 3-P; dated March 17, 2009 No. 5-P; dated February 27, 2009 No. 4-P; rulings of the Constitutional Court of the Russian Federation dated June 23, 2000 No. 147-0; dated November 5, 2004 No. 345-0; dated December 1, 2005 No. 462-0; from
Last updated: July 2017
Cooperation with the competent authorities of foreign states, as well as with international bodies and organizations, is one of the priority areas of activity of the Prosecutor General's Office of the Russian Federation. To ensure this important direction, in June 2006, by order of the Prosecutor General of the Russian Federation, instead of the International Legal Department, the Main Department of International Legal Cooperation was created, which included the Department of Extradition, the Department of Legal Assistance and the Department of International Law.
In order to increase the effectiveness of cooperation with the competent authorities of foreign states on cases being handled by the central offices of the investigating authorities, as well as on cases that received great public outcry, in September 2010, as part of the Main Directorate for International Legal Cooperation, a department of international cooperation was created for special important matters (on the rights of management). In March 2011, a department of legal assistance and cross-border cooperation with the states of East Asia (based in Khabarovsk) was formed in the legal assistance department of the Main Department for International Legal Cooperation.
To date, the most important place in the international activities of the Prosecutor General's Office of the Russian Federation is occupied by issues of interaction with foreign partners in the field of criminal justice. These are issues of extradition and provision of legal assistance in criminal cases, including in the field of the return from abroad of property obtained as a result of crimes.
In accordance with international treaties and Russian legislation, the Prosecutor General's Office of the Russian Federation is the competent authority of the Russian Federation for extradition and legal assistance in criminal cases.
In particular, by the Decrees of the President of the Russian Federation (No. 1362 dated October 26, 2004, No. 1799 and 1800 dated December 18, 2008, No. 180 dated February 13, 2012), the Prosecutor General's Office of the Russian Federation is determined on matters of extradition and legal assistance in criminal matters contained, respectively, in the UN Convention against Transnational Organized Crime of November 15, 2000, the UN Convention against Corruption of October 31, 2003, the Council of Europe Criminal Law Convention on Corruption of January 27 1999 and the Organization for Economic Co-operation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of November 21, 1997.
Currently, the Prosecutor General's Office of the Russian Federation cooperates in the field of criminal proceedings with partners from more than 80 countries of the world. Such interaction is carried out on the basis of international treaties or the principle of reciprocity, enshrined in Articles 453, 457, 460, 462 of the Code of Criminal Procedure of the Russian Federation.
The General Prosecutor's Office of the Russian Federation is the only competent body of the Russian Federation that sends to foreign states extradition requests persons in order to bring them to criminal responsibility or enforce sentences, and also decides on foreign requests for the extradition of persons from the Russian Federation.
Russia has special bilateral and multilateral international treaties regulating issues extradition, with almost 80 states (see the list of these treaties in the section "Basic Documents"). In particular, Russia is a party to such multilateral treaties as the European Convention on Extradition of 1957 with three additional protocols thereto of 1975 and 1978 and 2012, as well as the Convention on Legal Assistance and Legal Relations in Civil, Family and criminal cases of 1993 with the Protocol to it of 1997
The Russian Federation has special bilateral and multilateral agreements on legal assistance in criminal matters with more than 80 states (see the list of these treaties in the section "Basic Documents"). Thus, Russia participates in a number of multilateral treaties in this area: the European Convention on Mutual Assistance in Criminal Matters of 1959 and its Additional Protocol of 1978, the European Convention on the Transfer of Criminal Proceedings of 1972, as well as the Convention concluded within the framework of the CIS on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, 1993, with its Protocol of 1997
Cooperation between the Prosecutor General's Office of Russia and the competent authorities of foreign states in matters of extradition and legal assistance has been developing quite actively in recent years.
The scale of this cooperation is evidenced by the fact that annually the Prosecutor General's Office of the Russian Federation considers more than 10 thousand materials on extradition, legal assistance in criminal cases, search and other issues within the competence of the Prosecutor General's Office of the Russian Federation in the field of criminal proceedings.
The most effective cooperation develops with the competent authorities of Belarus, Kazakhstan, Uzbekistan, Germany, Spain, Serbia, Switzerland.
Every year, the Prosecutor General's Office of the Russian Federation sends about 400 requests for extradition of persons to the competent authorities of foreign states, and more than 1,500 similar foreign requests are considered.
The geography of cooperation in the field of extradition is expanding. Increasingly, criminals are trying to escape justice in states with which Russia has no extradition treaties. However, in recent years, with some of these countries (in particular, with Chile, Ghana, Cambodia, Paraguay, the United Arab Emirates, Thailand), the issues of transferring wanted persons to Russia have been successfully resolved.
Every year, the Prosecutor General's Office of the Russian Federation considers more than 6,000 requests for legal assistance in criminal cases, both those received from abroad and Russian ones intended for sending to foreign states.
The institute of transfer of criminal proceedings is effectively used. Petitions are sent to the competent authorities of foreign states to prosecute foreign citizens who have committed crimes on the territory of Russia, and also consider petitions from foreign states to prosecute Russian citizens who have committed crimes abroad.
One of the important activities of the General Prosecutor's Office of Russia is cooperation with foreign colleagues in matters of search, arrest, confiscation and return of stolen property from abroad.
Thanks to cooperation with foreign colleagues from Switzerland alone, over the past few years, over 110 million dollars have been returned to Russian companies. United States arrested on behalf of the Russian Prosecutor General's Office.
To date, at the request of the General Prosecutor's Office of Russia, money of malefactors totaling about 250 million euros and real estate worth about 300 million euros have been arrested and blocked abroad.
In May 2011, Chapter 29-1 was introduced into the Code of Administrative Offenses of the Russian Federation, which regulates international legal cooperation in cases of administrative offenses. At the same time, the Prosecutor General's Office of Russia has been identified as one of the competent authorities for the provision of legal assistance in such cases.
In addition, the General Prosecutor's Office of the Russian Federation is the competent authority for the Commonwealth of Independent States (CIS) Convention on the Transfer of Persons with Mental Disorders for Compulsory Treatment (1997).
In recent years, in cooperation with the Ministry of Justice of Russia and the Ministry of Foreign Affairs of Russia, a lot of work has been carried out to develop the legal framework for our country's participation in international cooperation in the field of criminal justice, as well as to implement the provisions of international treaties into Russian legislation.
Representatives of the Prosecutor General's Office of the Russian Federation take an active part in the development of draft treaties on extradition and legal assistance in criminal cases, incl. within international organizations.
In particular, one of the Deputy Heads of the Main Directorate for International Legal Cooperation of the General Prosecutor's Office of the Russian Federation has been successfully representing Russian interests in the Committee of Experts of the Council of Europe on the operation of European conventions on cooperation in criminal matters for more than 20 years, actively contributing to the implementation of the Russian initiative to modernize such conventions, in including in matters of speeding up and simplifying extradition procedures.
On an ongoing basis, work is being done to strengthen the legal framework for interdepartmental cooperation. In particular, within the framework of the CIS, the following were signed:
Agreement on Cooperation between the General Prosecutor's Offices (Prosecutor's Offices) of the Member States of the Commonwealth of Independent States in the fight against corruption dated April 25, 2007;
Agreement on Cooperation between the Prosecutor General's Offices of the Member States of the Commonwealth of Independent States in the fight against trafficking in human beings, human organs and tissues dated December 3, 2009
In general, today the Prosecutor General's Office of the Russian Federation has 5 multilateral and 80 bilateral interdepartmental agreements and other agreements on cooperation with partners from 66 foreign countries. Over the past 5 years, 28 such agreements have been signed.
Since 2007, on the basis of agreements with the competent authorities of foreign states, cooperation programs have been developed and signed. Programs are accepted for 1-2 years and provide for the exchange of experience and the establishment of practical interaction on topical issues of mutual interest. During this time, 48 programs have been signed with partners from 28 foreign countries, 40 cooperation programs have been implemented, more than 130 events envisaged by them have been held: consultations, meetings, seminars and round tables.
Currently, 7 programs of interdepartmental cooperation are being implemented: with the prosecution or justice authorities of Abkhazia, Armenia, Bahrain, Hungary, China, Cuba, Finland.
Particularly close relations have developed between the Prosecutor General's Office of Russia and their Belarusian counterparts. On May 15, 2008, the Joint Board of the Prosecutor General's Office of the Russian Federation and the Prosecutor General's Office of the Republic of Belarus was established, which coordinates the activities of the prosecutor's offices of the two countries in the areas of ensuring law and order, protecting human and civil rights and freedoms, and fighting crime.
Representatives of the Prosecutor General's Office of the Russian Federation participate in the activities of various international bodies and organizations, including the relevant structures of the UN, Interpol, the CIS, the Council of Europe, the Shanghai Cooperation Organization (SCO), as well as the Council of the Baltic Sea States.
For example, representatives of the Prosecutor General's Office of the Russian Federation are included in the delegations of the Russian Federation participating in the work of the UN Commission on Narcotic Drugs and the UN Commission on Crime Prevention and Criminal Justice, as well as in international events held under the UN Convention against Corruption. The participation of Russian prosecutors in the activities of the UN Office on Drugs and Crime, the UN Security Council Counter-Terrorism Committee, as well as in conferences of the participants of the UN Convention against Transnational Organized Crime is ensured.
At the meeting of the Prosecutor General of the Russian Federation Chaika Yu.Ya. On June 22, 2017, in Moscow, with the Secretary General of Interpol, Mr. Y. Shtok, the issues of organizing an effective search through the channels of Interpol for persons accused of committing crimes in Russia were discussed.
The interaction of the Prosecutor's Office of the Russian Federation in the areas of ensuring the rule of law, protecting human rights and freedoms, combating crime with partners from the CIS countries is carried out within the framework of the Coordinating Council of Prosecutors General of the CIS Member States (CCGP).
Since the establishment of the KSGP in December 1995, the General Prosecutor of the Russian Federation has been its permanent chairman. The Scientific and Methodological Center of the KSGP operates on the basis of the Academy of the General Prosecutor's Office of the Russian Federation.
The most important issues are brought to the annual meetings of the CCSG. In particular, information is traditionally heard on the state of protecting the rights of citizens, especially those outside their state on the territories of the CIS member states, as well as on the practice of implementing interstate programs and international treaties of the CIS member states in the field of combating crime. There is an exchange of information on the best practices of prosecutorial activity in various fields.
The 27th meeting of the CCGC will be held in St. Petersburg in November 2017. Previously, CCGC meetings were held in Russia 8 times, including in Moscow on September 5, 2010 and St. Petersburg on May 15, 2012.
The 15th meeting of the Prosecutors General of the SCO member states will be timed to coincide with the 27th meeting of the CCGP. The decision to create a mechanism for regular meetings of the Prosecutors General of the SCO member states was taken during a meeting of the Prosecutors General of the Organization member states held in Shanghai (PRC) on October 31-November 2, 2002.
Over the 15 years of the existence of this format of cooperation, many decisions have been made that have contributed to the improvement of prosecutorial cooperation within the SCO, primarily anti-terrorist cooperation, the consolidation of the efforts of prosecutors in the fight against organized forms of crime, as well as in the protection of human rights and freedoms. In Russia, meetings of the Prosecutors General of the SCO member states were held twice (Moscow, November 24, 2005 and April 13, 2009).
The issue of the growing role of prosecutors in the fight against terrorism was discussed at the 14th meeting of the Prosecutors General of the SCO member states (People's Republic of China, Sanya, November 30, 2016).
In September 2017, Russia (Kazan) will host the third meeting of the Interstate Council on Combating Corruption (Interstate Council), an agreement on the establishment of which was adopted at a meeting of the Council of CIS Heads of State on September 25, 2013. In accordance with the Decree of the President of the Russian Federation dated 21 February 2014 No. 104 The Prosecutor General of the Russian Federation is a member of the Interstate Council from Russia.
The interaction between the prosecutor's offices of the states that are members of the international association BRICS (Brazil, India, Russia, China, South Africa) is being strengthened. The General Prosecutor's Office of the Russian Federation organized the first meeting of the heads of the prosecutorial services of the BRICS states (Sochi, November 10, 2015), the participants of which agreed to establish prosecutorial cooperation in the association, primarily in order to prevent international terrorism, counteract the global drug threat and corruption, as well as approved the Concept of Cooperation between the Prosecutor's Offices of the BRICS States.
The second meeting of the heads of the prosecution services of the BRICS states took place on December 1, 2016 in Sanya (Hainan Province, China). During this event, issues of cooperation in the field of combating corruption were discussed.
Representatives of the General Prosecutor’s Office of the Russian Federation also participated in the meetings of senior BRICS officials on anti-corruption cooperation (St. Petersburg, November 1, 2015; London, June 9-10, 2016), during which the functioning of the BRICS Anti-Corruption Working Group was discussed. They also took part in the meetings of this group (Beijing, January 26-27, 2016, Berlin, January 22-26, 2017, Brasilia, March 14, 2017) In 2017, the main items on the agenda of the BRICS Anti-Corruption Working Group are issues related to the rapidly growing problem of the return of assets obtained as a result of acts of corruption.
At the third meeting of the heads of the prosecutorial services of the BRICS states, scheduled to be held in Brasilia from August 23 to 24 this year, it is supposed to discuss issues of combating cybercrime and crimes against the environment.
Representatives of the Prosecutor General's Office of the Russian Federation are actively involved in the work of the Consultative Council of European Prosecutors (CCEP), established in 2005, which is an advisory body of the Committee of Ministers of the Council of Europe, the main body of this organization that unites 47 states of the old continent. The CCEP adopted 11 opinions on various aspects of prosecutorial activity, in the development of which Russian prosecutors actively participated.
For example, on the Russian initiative in October 2008, the CCEP conclusion No. 3 “On the role of the prosecutor's office outside the criminal law sphere” was adopted. The basis for the preparation of the opinion of CCEP No. 3 was the final document of the Conference of Prosecutors General of European countries, held on this topic by the Prosecutor General's Office of the Russian Federation jointly with the Council of Europe on July 1-3, 2008 in St. Petersburg. During this conference, foreign colleagues highly appreciated the experience of the Russian prosecutor's office in protecting human rights and freedoms and public interests outside the criminal law sphere.
As a follow-up to CCEP Conclusion No. 3, in September 2012, with the active participation of representatives of the General Prosecutor's Office of the Russian Federation, the recommendation of the Committee of Ministers of the Council of Europe (2012)11 to member states on the role of prosecutors outside the criminal justice system was adopted.
The Academy of the General Prosecutor's Office of the Russian Federation is a member of the Lisbon Network established within the framework of the Council of Europe for the exchange of information on the training of prosecutors and judges.
Delegations of the Prosecutor General's Office of the Russian Federation take an active part in the meetings of the Prosecutors General of the member states of the Council of the Baltic Sea States. In September 2017, the 17th Meeting of Prosecutors General of the Member States of the Council of the Baltic Sea States is planned to be held in Kaliningrad.
The Russian prosecutor's office has a high international prestige, which is evidenced by the fact that its representatives have been elected to the governing and working bodies of a number of authoritative international organizations, incl. Council of Europe, International Association of Prosecutors and International Association of Anti-Corruption Authorities.
In 2011, the Deputy Head of the Directorate for Supervision of Enforcement of Anti-Corruption Legislation of the General Prosecutor's Office of the Russian Federation became a member of the Bureau of the Group of States against Corruption (GRECO). Since November 2013, the heads of this department have been elected to the Executive Committee of the International Association of Anti-Corruption Authorities, established in 2006.
In November 2016, at the 85th session of the General Assembly of Interpol, a representative of the Prosecutor General's Office of the Russian Federation, by secret ballot, was elected a member of the Commission for Control over Interpol Files and the Procedure for Interpolation Through Interpol Channels in the Field of International Search for Persons.
Close relations link the General Prosecutor's Office of the Russian Federation with such a non-governmental organization as the International Association of Prosecutors (IAP). The Russian prosecutor's office was one of the initiators of its creation in 1995.
The Association has over 2,200 individual members and 170 organizational members (Prosecution Services, National Associations of Prosecutors and a number of anti-crime bodies). Thus, the MAP represents almost 250,000 prosecutors from 173 jurisdictions.
Yu.Ya. Chaika, Prosecutor General of the Russian Federation is a member of the IAP Senate. Representatives of the General Prosecutor's Office of the Russian Federation also take an active part in the work of the Executive Committee of the Association.
In particular, the Prosecutor General's Office of the Russian Federation was awarded the right to host the 18th IAP Annual Conference, which was held in Moscow in September 2013 and was dedicated to the topic "The Prosecutor and the Rule of Law". It was attended by 115 delegations from over 90 States and 16 international bodies and organizations, including 52 Attorney Generals and Directors of National Public Prosecutions.
In November 2015, Sochi hosted the 7th IAP Regional Conference for the States of Central and Eastern Europe and Central Asia, dedicated to combating terrorism and violent extremism. It brought together more than 150 representatives of prosecution authorities from 34 states and 9 international bodies and organizations, including the UN, the Council of Europe, the OSCE, the CIS, the SCO and Eurojust.
The strengthening of ties with the competent authorities of foreign states was largely facilitated by efforts aimed at developing interdepartmental cooperation with foreign partners.
In addition to concluding cooperation agreements and programs, the Prosecutor General's Office of the Russian Federation organizes multilateral international events during which the most pressing issues of international prosecutorial cooperation are discussed. In particular, on September 13, 2010 in Moscow, at the initiative of the General Prosecutor's Office of the Russian Federation, the first meeting of the heads of departments of the prosecutor's offices of the CIS member states, whose competence includes extradition and legal assistance in criminal cases, was held.
In April 2011, an international conference was held in Pskov on the theme “Combating drug trafficking, including synthetic drugs and their precursors. The effectiveness of international cooperation in this area”.
Issues of cooperation in the field of combating illicit drug trafficking and combating illegal migration were considered at an international conference organized by the General Prosecutor's Office of the Russian Federation and held in Yekaterinburg on August 28-29, 2012.
On September 23-25, 2014, an international seminar was held in Vladivostok with representatives of the competent authorities of a number of states in East and Southeast Asia on issues of increasing the effectiveness of cooperation in the field of criminal justice.
The Baikal International Conference of Prosecutors, held by the General Prosecutor's Office of the Russian Federation in Irkutsk on August 26-27, 2014, was devoted to the topic of cooperation in combating transnational organized crime.
On December 14, 2016, in Moscow, with the participation of representatives of the competent authorities of foreign states and a number of organizations of the international prosecutorial community, the General Prosecutor's Office of the Russian Federation held the Third Open Information Forum on International Legal Cooperation.
Representatives of the international prosecutorial community participated in the celebrations on the occasion of the 290th anniversary, as well as the 295th anniversary of the Russian prosecutor's office in January 2017. Representatives of the prosecutor's office and justice from 18 states, as well as the heads of the International Association of Prosecutors and the Executive Secretary of the KSGP .
The most important tasks of the Russian prosecutor's office in the near future are to expand and increase the effectiveness of its participation in international legal cooperation, especially in the field of criminal justice, improve the contractual and legislative framework, including on issues of search, arrest, confiscation and return from abroad of property received in a criminal way.
General Directorate of International
legal cooperation, July 2017
1. Implementation in the Russian Federation of acts of bodies of international organizations. 3
2. Compare the international norms on trademarks and the provisions of Part Four of the Civil Code of the Russian Federation. 15
3. Problem 19
References 25
1. Implementation in the Russian Federation of acts of bodies of international organizations.
Growing integration processes lead to closer interaction between national and international law. Their mutual influence is becoming a powerful factor in legal development in the modern world. In metaphorical terms, we have before us "crossing parallels", when two legal systems either converge or diverge. Between them, such a variety appears as interstate associations such as the EU, CE, CIS with a stricter internal structural and regulatory organization.
Moreover, the mutual influence of internal law and "external" legal systems is very peculiar. The corresponding international normative arrays or branches (international educational, environmental law, etc.) adjoin the branches of national law, as it were, becoming to a certain extent their source. In turn, the sectoral system of national law affects the sectoral specialization of international law. And the general theory of state and law can no longer be developed purely on a national basis, because international law and comparative law expand its source base.
In state-legal practice, acute problems arise, for the solution of which it is necessary to creatively develop a system of international norms and a mechanism for their implementation and operation in the national legal system, including the Russian one. Moreover, the emphasis is on the implementation of mainly international treaty rules. The problems of most interest to us have been recently developed by I.I. Lukashuk and S.Yu. Marochkin. The importance of universally recognized principles and other international norms cannot be underestimated. In addition, specific acts are adopted within the framework of interstate associations. The specifics of international legal acts and norms explain the features of the methods and procedures for their implementation. In the legal system of the country, these acts "meet" with others, interconnected, and have an impact on both lawmaking and law enforcement.
Let's start with clarifying the relationship between international legal personality and the sovereignty of states. International instruments, such as the European Energy Charter, recognize the sovereign rights of states. Hence the main question is inevitable: what are the criteria for the compliance of international legal norms with the Constitution and Russian legislation? Let's call them:
a) ensuring the national - state interests, enshrined in Art. 1, 2, 3, 4, 8, 10, 15 of the Constitution of the Russian Federation;
b) compliance with the principles of the Russian legal system and the construction of legislation and its branches, basic legal concepts;
c) maintaining the stable competence of the subjects of Russian law and their relationships;
d) protection of human and civil rights and freedoms;
e) ensuring the sustainability of national parameters of the economy;
f) availability of procedures for implementing the norms and protecting the legitimate interests of citizens and legal entities.
In foreign countries, one can find peculiar constitutional formulas. According to the Spanish Constitution, an organic law may authorize the conclusion of agreements on participation in international organizations. The conclusion of certain international treaties requires the prior permission of the Parliament. According to the Italian Constitution, the country's legal order is consistent with the generally recognized norms of international law.
In domestic jurisprudence, the issue concerning the implementation of the norms of the ICCPR contained in a non-contractual form (acts of international organizations, acts of international judicial bodies) has not received due coverage.
Neither the Constitution of the Russian Federation, nor the procedural codes (CPC RF and APC RF) say a word about these sources.
Meanwhile, these sources have a growing influence on national legal systems, including the law enforcement activities of the courts. G.I. Tunkin wrote: "The role of the normative recommendations of specialized international organizations in international relations is undoubtedly increasing. Therefore, establishing their legal nature and actual role is of both theoretical and practical importance." A scientific study needs a legal possibility and the need for law enforcement agencies to use the norms of international law contained in various sources when considering specific situations.
Tunkin G.I. Theory of international law. M., 2000. S. 43 - 44. Russian courts are often guided by these acts.
So, for example, the Sverdlovsk Regional Court, based on a generalization of the practice of considering cases on consumer protection for the period 2001-2004. given
the relevant international legal norms to be applied by the courts when considering consumer protection cases: "The Russian Federation is a Member State of the United Nations, therefore, the Guiding Principles for the Protection of Consumer Rights adopted on April 9, 1985 by the UN General Assembly directly apply on its territory , where it is stated that consumers are in an unequal position in terms of economic conditions, level of education and purchasing power, that consumers should have the right to access safe goods ... Since February 24, 1996, based on the Federal Law of February 23, 1996 Federal Law No. 20-FZ of 23 February 1996 "On the Accession of the Russian Federation to the General Agreement on the Privileges and Immunities of the Council of Europe and its Protocols" The Russian Federation is member of the Council of Europe By virtue of the Statute of the Council of Europe for members, This international organization is bound by the Resolution of the 25th Consultative Assembly of the European Union of 1973 N 543 "Charter for the Protection of Consumer Rights". The Charter establishes the right to compensation for any damage or loss from the supply of goods or services, if they were the result of an incorrect description, low quality of the goods or services.
The official website of the Sverdlovsk Regional Court: tagtgіsіa.e-ligd.gi/BGіo\/\_Cos.rgir?iC=3998.
The Supreme Court of the Russian Federation (paragraph 16 of the Decree of the Plenum of October 10, 2003 N 5) indicated that the resolutions of international conferences and organizations, unless otherwise specifically stipulated, do not have legal force and are not subject to application by the courts, but can only be used in interpreting the norms international law. A similar point of view was expressed by legal theorists, but, in our opinion, it is incorrect, unbalanced and refuted by the practice of the same Supreme Court of the Russian Federation.
See: Russian Legal System and International Law: Modern Problems of Interaction // State and Law.
1996. N 3. S. 25.
Thus, the Sverdlovsk Regional Court, repeating paragraph 9 of the Decree of the Plenum of the Supreme Court of the Russian Federation of February 24, 2005, pointed out that “the courts should bear in mind that, according to Articles 3 and 4 of the Declaration on the freedom of political discussion in the media , adopted on February 12, 2004 at the 872nd meeting of the Committee of Ministers of the Council of Europe, politicians who seek to enlist public opinion, thereby agree to become the object of public political discussion and criticism in the media" .
On judicial practice in cases of protecting the honor and dignity of citizens, as well as the business reputation of citizens and legal entities // Bulletin of the Supreme Court of the Russian Federation. 2005. N 4. S. 6.
Reference on the results of the generalization of the practice of consideration and resolution by the courts of the Sverdlovsk region of court cases on the protection of the honor and dignity of citizens, as well as the business reputation of citizens and legal entities for the 1st-11th quarters of 2006 // Official website of the Sverdlovsk Regional Court: www.ekboblsud.ru/ show_doc.php?id=15024.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, leaving the decision of the Tomsk Regional Court in force, pointed out that "in this process, all the norms of international law and Russian legislation protecting the interests of children, in particular, Articles 16, 17, were complied with Declaration on Social and Legal Principles Concerning the Protection and Welfare of Children, Especially in the Placement and Adoption of Children at the National and International Levels (adopted by the Resolution of the UN General Assembly on December 3, 1986), according to which the adoption of a child abroad as An alternative solution to the issue of providing a child with a family can only be considered if it is not possible to transfer him to another family for upbringing or adoption or to ensure that he is adequately cared for in the country of origin.
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation of December 20, 2005 N 88-G05-19 // Bulletin of the Supreme Court of the Russian Federation. 2006. N 10. S. 1.
The Supreme Court of the Russian Federation, upholding the decision of the Leninsky District Court of Vladivostok on partial satisfaction of the claims for the recovery of wages, compensation for unused vacation and days off, indicated that the court correctly calculated the debt of the defendant to the plaintiff in terms of wages and compensation amounts on the
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation of February 21, 2003 N 56-Vpr03-2 // Bulletin of the Supreme Court of the Russian Federation. 2004. N 1. S. 12.
The fulfillment of obligations arising from the decisions of international organizations is inextricably linked with the operation of international legal norms enshrined in international treaties and other sources. Failure to fulfill such obligations leads to a violation of international legal norms and, consequently, the principle of pacta sunt servanda, regardless of their form (preamble of the Federal Law "On International Treaties of the Russian Federation", Article 44 of the Federal Constitutional Law of December 17, 1997 N 2-FKZ "On the Government of the Russian Federation", Article 22 of the Federal Constitutional Law of January 30, 2002 N 1-FKZ "On Martial Law", Article 263 of the Tax Code of the Russian Federation, etc.) Thus, the refusal of the UN member states to obey the decisions of the Security Council there is a violation of Article 25 and paragraph 2 of Article 2 of the UN Charter.
Charter of the United Nations. Adopted in San Francisco on June 26, 1945 // Public International Law: Sat. documents. T. 1. M., 1996. S. 1 - 2, 227 - 237, 401 - 404.
The fulfillment of obligations arising from the decisions of international organizations is inextricably linked with the operation of international legal norms, enshrined in a non-treaty form. Failure to fulfill such obligations leads to a violation of international legal norms and, consequently, the principle of conscientious fulfillment of international obligations.
The problem of using non-contractual sources of ICPP in Russia has many aspects. Let's consider two of them.
First. Implementation in Russia of acts of bodies of international organizations.
The legal force of the decisions of international organizations is determined by the constituent documents. They can be both mandatory and recommendatory. A concept was formed on the division of international law into "soft law" - recommendatory norms and "hard law" - mandatory norms. Issues related to decisions related to international "soft law" were studied by Yu.S. Bezborodov, L.I. Volovoy, V.V. Gavrilov, R.A. Kolodkin, I.I. Lukashuk, T.N. Neshataeva, Yu.A. Reshetov, G.I. Tunkin, V.M. Shumilov and others.
See: Neshataeva T.N. International organizations and law: New trends in international legal regulation. M., 1998. S. 107 - 108.
See: Barkovsky I. Law-making activities of international organizations: Theoretical aspects and modern trends // Belarusian Journal of International Law and International Relations. 2003. No. 2; Yu.S. Bezborodov The role of soft law norms in international legal regulation // Public and private international law. 2004. N 6. S. 3 - 6; Gavrilov V.V. Rule-making activity of the UN in the field of human rights // Problems of Russian legislation: Sat. scientific tr. Vladivostok, 1997, pp. 87 - 101; He is. UN and Human Rights: Mechanisms for the creation and implementation of normative acts. Vladivostok, 1998; Volova L.I., Papushina I.E. International investment law. Rostov n/D, 2001, p. 64; Tunkin G.I. Theory of international law. M., 2000. S. 142 - 159; Kolodkin R.A. Criticism of the concepts of "soft law" // Soviet state and law. 1985. N 12. S. 95 - 100; Krylov N.B. Law-making activity of international organizations. M., 1988; Lukashuk I.I. International "soft" law // State and law. 1994. No. 8/9. pp. 159 - 163; Malinin S.A. Law-making activity of interstate organizations and the scientific and technological revolution // Jurisprudence. 1977. N 3. S. 131; Margiev V.I. Internal law of international organizations: Dis. ... Dr. jurid. Sciences. Kazan, 1999; Matveeva T.V. On the issue of "soft law" in the regulation of international private law relations // State and Law. 2005. N 3. S. 62 - 71; Neshataeva T.N. International organizations and law. New trends in international legal regulation. M., 1999; She is. Influence of intergovernmental organizations of the UN system on the development of international law: Dis. ... Dr. jurid. Sciences. M., 1993; Reshetov Yu.A. On the issue of "soft law" // MZHMP. 2000. N 3. S. 26.
As noted by V.F. Petrovsky, "soft law" is becoming more and more widespread, and the resolutions of international organizations related to it perform a number of important functions - they often fill the gap between treaty acts and customary law. Resolutions of the UN General Assembly of a normative nature and the relevant recommendations of the UN specialized agencies should not be considered as documents adopted solely for the purpose of reproduction, confirmation of existence or interpretation
existing principles and norms of international law, they have their own regulatory potential and impose political obligations on states. Resolutions of the General Assembly are one of the important factors in the formation of international legal norms and the functioning of international law in general. T.M. Kovaleva on this occasion points out: "the law-making of international organizations is an integral part of international law-making in general...". Professor of the University of Tokyo I. Onuma emphasizes: "the principles that are reaffirmed again and again by consensus or by an overwhelming majority in the declarations of such universal bodies as the UN General Assembly have received much greater recognition in the international community than most of the norms of customary international law" .
See: Bakhmin V.I. Second World Conference on Human Rights // MZHMP. 1994. N 4. S. 31.
See: Gavrilov V.V. Adoption of the UN acts on human rights and the international mechanism for their implementation: Abstract of the thesis. dis. ... cand. legal Sciences. Kazan, 1994, p. 5.
See: Lukashuk I.I. Resolutions of the UN General Assembly in the practice of state courts // State and Law. 1993. N 7. S. 119.
Kovaleva T.M. Law-making activity of an interstate organization as a way to implement a constituent act: Dis. ... Dr. jurid. Sciences. Kaliningrad, 1999, p. 16.
Proceedings of the 75th Annual Meeting of the American Society of International Law. Washington. CD C., 1981. P. 166.
Acts of the bodies of international organizations (for example, the European Community and the European Union, the Council of Europe, the WTO, ICAO, the IAEA, the CIS, the EurAsEC, etc.) are binding not only for their institutions, but also for member states. The significance of the acts of international bodies and organizations lies not only in their influence on the subsequent development of international legal norms, but also in the presence of their own regulatory potential. Clause 16 of the Decree of the Plenum of the Supreme Court of the Russian Federation of October 10, 2003 N 5 "On the application by courts of general jurisdiction of the generally recognized principles and norms of international law and international treaties of the Russian Federation" recommends to the courts in case of difficulties in interpreting the generally recognized principles and norms of international law, international treaties of the Russian Federation use acts and decisions of international organizations, including UN bodies and its specialized agencies.
Gavrilov V.V. Rule-making activity of the UN in the field of human rights // Problems of Russian legislation: Sat. scientific tr. Vladivostok, 1997, p. 88.
For example, the Committee of Ministers of the Council of Europe adopted Recommendation N P(95)11 on the selection, processing, presentation and archiving of court decisions in legal information retrieval systems. This Recommendation refers to the need for the exchange of legal information, including on issues of civil procedure, between the law enforcement authorities of the CE member states. In pursuance of this recommendation, the judicial authorities of the Russian Federation exchange legal information with the courts of other countries. As a result of the analysis of the decisions made by the European Court of Human Rights, the Council of Europe concluded that in some states there is no clear structure of the judiciary to protect civil rights. Therefore, States were told that the system of state courts should provide for the possibility of exhaustion of remedies for civil rights.
See: hri.ru/docs/?content=doc&id=131.
In addition, the Recommendation of February 28, 1984 N R (84) 5 states that Member States should develop specific rules or a set of rules that accelerate the resolution of the dispute: a) in cases of urgency; b) in cases related to an indisputable right; c) in cases related to claims for small amounts; d) on certain categories of cases (in connection with traffic accidents, labor disputes, issues related to the relationship between the landlord and the tenant of the dwelling, some issues of family law, in particular, the establishment and revision of the amount of alimony). In Belgium, Denmark, England, under the influence of these recommendations, serious changes were made to the procedural codes.
See: Kudryavtseva E.V. Civil Procedure Code of England (Legal Status and Basis of the Basic Concept) // Legislation. 2003. N 6. S. 68 - 79; Matveeva T.V. To the question of
"soft law" in the regulation of international private law relations // State and Law. 2005. N 3. S. 67.
Russian courts widely apply international norms contained in sources other than international treaties.
So, for example, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, when considering a complaint from citizens of the Federal Republic of Germany against the decision of the Omsk Regional Court to refuse to adopt R., referred to Art. Art. 16, 17 Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, Especially in the Placement and Adoption of Children at the National and International Levels, adopted by General Assembly Resolution 41/95
The Chairman of the Sverdlovsk Regional Court draws the attention of the regional courts to the need to apply as "normative provisions of international law" the Recommendations of the Cabinet of Ministers of the Council of Europe dated May 14, 1981 N Rch (81) 7 and September 11, 1995 N R (9) 12.
Meanwhile, in the Russian Federation there is no general legal mechanism for the implementation of the norms enshrined in the form of acts of bodies of international organizations. The law in force only outlines some of the elements of this mechanism. Part 4 Art. 15 of the Constitution of the Russian Federation is designed mainly for international treaties. Only the Federal Law of July 17, 1999 N 176-FZ "On Postal Communication" provides for the legally fixed possibility of applying acts of bodies of international organizations. In accordance with Part 2 of Art. 4, "relations in the field of international postal communications may be regulated by decisions of international postal organizations to which the Russian Federation is a member."
SZ RF. 1999. N 29. Art. 3697; 2003. N 28. Art. 2895; 2004. N 35. Art. 3607.
As a rule, the implementation of the acts of the bodies of international organizations is of a one-time nature and is carried out at all levels and in all spheres of relations.
For more details, see Komendantov S.V. On the role of acts of bodies of international organizations in the legal system of the Russian Federation // Russian Legal State: Results of Formation and Prospects for Development: In 5 hours, Part 1 / Ed. Yu.N. Starilova. Voronezh, 2004. S.
As a result of the analysis of the practice of implementing acts of international organizations in Russia, the following picture emerges. The implementation of these documents is carried out by all state bodies; and problems are solved, so to speak, as they arise.
For example, on October 18, 1995, the Committee of the Russian Federation on Fisheries issued Order N 165 "On the organization of the management of the safe operation of the fishing fleet", in which he indicated the need to apply as an international standard the International Code for the Management of the Safe Operation of Vessels and the Prevention of Pollution - ISM Code, which is a resolution International Maritime Organization.
Implementation of acts of bodies of international organizations is also carried out by judicial bodies. The Constitutional Court of the Russian Federation has repeatedly motivated its rulings with the provisions of the 1990 Basic Principles Concerning the Role of Lawyers, the 1975 Declaration on the Rights of Persons with Disabilities, and other acts.
In Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation of September 7, 1999 N 1245/98 and of February 29, 2000 N 2459/99, in the information letter of the Supreme Arbitration Court of the Russian Federation of January 18, 2001 N 58, Russian arbitration courts indicated the need to apply the decision of the Council Heads of Government of the CIS dated October 18, 1996 "On the new wording of paragraph 9 of the Rules for determining the country of origin of goods".
Since an increasing number of acts of bodies of international organizations are acquiring the qualities of sources of international law, their implementation in Russia should be provided with its own legal mechanism. It is necessary to move from the practice of one-time implementation, when the Russian state issues acts with a great delay on the procedure for implementing a specific document of a particular organization, or even does not do it at all, to a "general reception" scheme, in which the Russian legal system will automatically include a document of an authority international organization that is legally binding.
It seems necessary to clarify the content of the norms of legislation in the field of implementation of the norms of non-traditional sources of international law. Since the Russian Federation reaffirms its adherence to the fundamental principle of international law - the principle of conscientious fulfillment of international obligations and stands for strict observance and implementation of the norms of international law, regardless of the form of their consolidation, it is necessary:
1) supplement the Arbitration Procedure Code of the Russian Federation with article 3.1 of the following content:
"Article 3.1 Arbitration procedural legislation of the Russian Federation and international law
1. The norms of international law, in particular the universally recognized norms contained in various sources of international law, are an integral part of the Russian legal system and directly give rise to the rights, freedoms and obligations of individuals and legal entities in the field of arbitration proceedings. If an international legal norm that is binding on the Russian Federation establishes other rules than those provided for by this Code, the rule contained in the international legal norm shall apply.
2. The provisions of officially published international treaties of the Russian Federation, officially published other international legal acts, in accordance with the legislation of the Russian Federation in the field of arbitration proceedings, which do not require the issuance of domestic acts for application, are directly applicable in the Russian Federation. To implement the provisions enshrined in international legal acts requiring the issuance of domestic acts, appropriate legal acts are adopted.
3. International treaties of the Russian Federation, the consent to be bound by which is given in the form of a federal law, take precedence over the norms of this Code";
2) supplement the Code of Civil Procedure of the Russian Federation with Article 1.1 of the following content:
"Article 1.1. Civil procedural legislation of the Russian Federation and international law
1. The norms of international law, in particular the universally recognized norms contained in various sources of international law, are an integral part of the Russian legal system and directly give rise to the rights, freedoms and obligations of individuals and legal entities in the field of civil justice. If an international legal norm that is binding on the Russian Federation establishes other rules than those provided for by this Code, the rule contained in the international legal norm shall apply.
2. The provisions of officially published international treaties of the Russian Federation, officially published other international legal acts, in accordance with the legislation of the Russian Federation in the field of civil proceedings, which do not require the issuance of domestic acts for application, are directly applicable in the Russian Federation. To implement the provisions enshrined in international legal acts requiring the issuance of domestic acts, appropriate legal acts are adopted.
3. International treaties of the Russian Federation, the consent to be bound by which is given in the form of a federal law, take precedence over the norms of this Code.
Second. Implementation in Russia of acts of international judicial bodies. In our case, we are talking about the acts of the European Court of Human Rights and the Economic Court of the CIS.
On the one hand, according to part 3 of Art. 6 of the Federal Constitutional Law of December 31, 1996 N 1-FKZ "On the Judicial System of the Russian Federation" of 1996, binding on
territory of the Russian Federation of decisions of international courts is determined by an international treaty. This wording assumed its decoding in the procedural codes, and on August 7, 2000, such a provision was introduced into the CPC of the RSFSR. According to the Federal Law of August 7, 2000 N 120-FZ "On the Introduction of Amendments and Additions to the Civil Procedure Code of the RSFSR", the binding nature of acts of courts of foreign states, international courts and arbitrations on the territory of the Russian Federation is determined by international treaties of the Russian Federation.
SZ RF. 1997. N 1. Art. 1 (last modified). SZ RF. 2000. N 33. Art. 3346.
However, the new Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation do not contain such a provision. Part 4 Art. 16 of the Arbitration Procedure Code of the Russian Federation and part 5 of Art. 13 of the Code of Civil Procedure of the Russian Federation limit the issue of recognition and binding (in the Code of Civil Procedure of the Russian Federation) and recognition and enforcement (in the Code of Civil Procedure of the Russian Federation) on the territory of Russia by judicial acts adopted by foreign courts and foreign arbitration courts (in the Code of Civil Procedure of the Russian Federation), as well as foreign arbitral awards (in the Code of Civil Procedure of the Russian Federation ). Acts of international judicial bodies were ignored. Meanwhile, the problem is serious. Let's consider it in more detail.
1. An important place in the legal system of Russia is occupied by the decisions of the European Court of Human Rights, which ensures the proper implementation of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. In its 1978 judgment in the case of Ireland v. the United Kingdom, the court stated that its acts "serve not only for the resolution of specific disputes, but also, in a broader sense, for the clarification, protection and development of the norms of the Convention, and also contribute to the observance by the States Parties to the Convention of their obligations." The statement made by Russia when ratifying the European Convention recognizes that "the provisions of the Convention do not exist by themselves, but in the form in which they are understood and applied by the European Court of Human Rights" .
SZ RF. 1998. N 14. Art. 1514.
As Pierre-Henri Ambert, Director General for Human Rights of the Council of Europe, who was present at the meeting of the Plenum of the Supreme Court of the Russian Federation, noted, "Russian courts should perceive the practice of the European Court not as something alien, foreign, but as part of their own practice" . A diametrically opposite opinion is held by N. Vitruk, who believes that "for the Russian legal system, the statement about case law, in particular the decisions of the European Court of Human Rights, is insufficiently substantiated. Recognition of case law in the Russian legal system can seriously weaken the legal force of the Constitution, the law , lead to the deformation of the latter through law enforcement practice" . In our opinion, this kind of position, unfortunately quite common among the judiciary, cannot be recognized as correct. As experts rightly point out, the ever more active introduction of elements of case law testifies to the deepening of the integration of the Russian judicial system into the international judicial community. By virtue of Art. 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights has the right to decide all questions concerning the interpretation and application of the provisions of the Convention and its Protocols. Therefore, the legal positions of the European Court, set out in its decisions when interpreting the provisions of the Convention and its Protocols, and the precedents of the European Court themselves are recognized by the Russian Federation as having a binding character.
Cit. Quoted from: Mikhailina Yu. Russian courts will accept "alien practice of the European Court" // Newspaper. 2003. 19 Sept.
Vitruk N. On some features of the use of decisions of the European Court of Human Rights in the practice of the Constitutional Court of the Russian Federation and other courts // Implementation of decisions of the European Court of Human Rights in the practice of constitutional courts of European countries: Sat. reports. M., 2006. S. 184.
See: Internet interview with V.D. Zorkin, Chairman of the Constitutional Court of the Russian Federation: "Preliminary results of the activities of the Constitutional Court of the Russian Federation on the threshold of the 15th anniversary" // Official website of the Constitutional Court of the Russian Federation: www.ksrf.ru.
In paragraph 10 of the Decree of the Plenum of October 10, 2003 N 5, the Supreme Court of the Russian Federation indicates that the application of the European Convention for the Protection of Human Rights and Fundamental Freedoms must be carried out taking into account the practice of the European Court of Human Rights in order to avoid any violation of the Convention for the Protection of Human Rights and fundamental freedoms. Paragraph 11 of this Resolution states that, by virtue of paragraph 1 of Art. 46 of the Convention, the judgment of the European Court on
human rights in relation to the Russian Federation, adopted definitively, are binding on all state authorities of the Russian Federation, including the courts.
In the information letter dated December 20, 2000 N С1-7 / SMP-1341 "On the main provisions applied by the European Court of Human Rights in the protection of property rights and the right to justice," the Supreme Arbitration Court of the Russian Federation notes: "As a result of joining the jurisdiction of the European Court, Russian the mechanisms of judicial control over the observance of the property rights of participants in economic turnover in the Russian Federation have received support in the form of international judicial control. This means that the competence of arbitration courts to consider property disputes and the competence of the European Court to consider complaints of violation of property rights are interconnected."
Bulletin of the Supreme Arbitration Court of the Russian Federation. 2000. N 2.
Russian courts are obliged to follow the practice of the ECtHR, take into account the decisions of the court adopted by it in relation not only to Russia, but also to other states. This will be a guarantee that in the future in similar cases against the Russian Federation the same resolution will not be issued. In this regard, the Supreme Court of the Russian Federation stated that "the application by the courts of the Convention should be carried out taking into account the practice of the European Court of Human Rights in order to avoid any violation of the Convention for the Protection of Human Rights and Fundamental Freedoms." The question is natural: what is meant by "taking into account the practice of the European Court"?
Speaking at a press conference, V.M. Lebedev said: "Today it is not a novelty when courts, considering civil and criminal cases ... take into account the precedents of the European Court. And they not only apply, but also refer to them, motivating their decision."
Internet conference of the Chairman of the Supreme Court of the Russian Federation Vyacheslav Mikhailovich Lebedev "Reforming the procedural legislation in the Russian Federation" // www.garweb.ru/conf/supcourt/.
In a number of its documents, the Supreme Court of the Russian Federation (for example, decision of November 14, 2003 N GKPI03-1265, Decision of May 21, 2004 N 49-G04-48, Review of judicial practice for the II quarter of 2004) to argue its position used the judgments of the ECtHR. They also apply to lower courts. In particular, the Belgorod Regional Court has repeatedly drawn attention to the need for the courts to apply and take into account the positions of the ECHR set out in the judgments of the ECHR.
Bulletin of the Supreme Court of the Russian Federation. 2004. N 11. Bulletin of the Supreme Court of the Russian Federation. 2005. N 1. S. 26.
Review of judicial practice in civil cases for July 2004 // Information Bulletin of the Belgorod Regional Court. 2004. N9. pp. 18-21; Information for judges of the Belgorod region on the need for law enforcement to take into account the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and the practice of the European Court of Human Rights // Information Bulletin of the Belgorod Regional Court. 2004. N 2. S. 42 - 43.
The next case is indicative. By the decision of the court of the Chernyansky district of the Belgorod region, B. refused to satisfy the application for the establishment of the fact. The court proceeded from the fact that B.'s mother was not in a registered marriage with N. "The Family Code of the Russian Federation recognizes as marriage only legally formalized relations between a man and a woman, actual marital relations do not entail legal consequences." Reversing the decision of the Chernyansky District Court, the Judicial Collegium of the Belgorod Regional Court pointed out that the ECtHR "expanded the concept of "family life" taking into account modern changes in social and cultural models of family life. In specific cases, the European Court recognized the existence of family life between unmarried persons "This decision was taken in the case of Johnston v. Ireland. The stability of the applicants' relationship and the fact that, living together, they did not differ from a family based on marriage, were decisive for this decision."
Review of judicial practice in civil cases of the Belgorod Regional Court for December 2004 // Information Bulletin of the Belgorod Regional Court. 2004. No. 12.
Much attention is paid to the acts of the ECtHR by arbitration courts. In accordance with the provisions of the Federal Law of March 30, 1998 N 54-FZ "On Ratification of the Convention on
Protection of Human Rights and Fundamental Freedoms and the Protocols thereto" of 1998, the judgments of the European Court of Human Rights adopted in relation to the Russian Federation are an integral part of the legal system of Russia. These judicial acts are binding on all state and municipal bodies of the Russian Federation. These judgments of the ECtHR are a legal fact for the revision of court decisions adopted by national judicial authorities due to newly discovered circumstances. freedoms in the consideration by the arbitration court of a particular case, in connection with the adoption of a decision on which the applicant applied to the European Court of Human Rights.
SZ RF. 1998. N 14. Art. 1514.
In the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of August 13, 2004 N 22 on the issue of submitting to the State Duma the draft Federal Law “On Amendments to the Arbitration Procedure Code of the Russian Federation”, the Supreme Arbitration Court of the Russian Federation motivated its position with references to the decision of the European Court of Human Rights on the issue of admissibility complaints of A.A. Denisova v. Russian Federation, 6 May 2004 .
Bulletin of the Supreme Arbitration Court of the Russian Federation. 2004. No. 10.
It is difficult to explain the gap in terms of the absence of such a prescription in the Code of Civil Procedure of the Russian Federation. In the list of Art. 392 of the Code of Civil Procedure of the Russian Federation, there are no grounds for reviewing the decisions and rulings of the court that have entered into legal force due to newly discovered circumstances. As G.V. Ignatenko, "only elementary negligence could give rise to such a gap, which is clearly unacceptable given the abundance of individual complaints considered by the European Court, due to comparisons of decisions and rulings of Russian courts in civil cases and convention prescriptions" .
Ignatenko G.V. Modern aspects of judicial enforcement of international acts. S. 51.
The Supreme Court of the Russian Federation did not speak on the problem of the legal consequences of the acts of the ECtHR in its Resolution of the Plenum of October 10, 2003 N 5. Meanwhile, the judgments of the ECtHR issued in relation to Russia are part of the Russian legal system and are binding. Decisions and rulings issued by the European Court of Justice earlier in relation to other states are legal tools that are used by the court to decide on a similar case. The European Court of Human Rights has ruled that it will build on past decisions for "compelling reasons", such as "to ensure that the interpretation of the Convention reflects societal changes and continues to be relevant today".
Wildhaber L. Precedent in the European Court of Human Rights // State and Law. 2001. N 12. S. 5 - 17.
The Russian Federation is deriving for itself "a bitter experience, reaping the fruits of lawmaking and law enforcement activities" in the form of judgments of the European Court of Human Rights against Russia, made against Russia. We can mention the judgments of the European Court of Human Rights in the following cases: "Nelyubin v. Russian Federation" dated November 2, 2006 (complaint N 14502/04); Dolgova v. Russian Federation, 2 March 2006 (application no. 11886/05); Sokolov v. Russian Federation, 22 September 2005 (application no. 3734/02); Klyakhin v. Russian Federation, 30 November 2004; Nikitin v. the Russian Federation, 20 July 2004 (application no. 50178/99); Sukhorubchenko v. the Russian Federation, 10 February 2005 (application no. 69315/01); Poznahirina v. the Russian Federation, 24 February 2005; Makarova and Others v. Russia, 24 February 2005; Petrushko v. Russian Federation, 24 February 2005; Gizzatova v. Russian Federation, 13 January 2005; Timofeev v. Russia, 23 October 2003 (application no. 58263/00); Yemanakova v. the Russian Federation, 23 September 2004 (application no. 60408/00); Plaksin v. the Russian Federation, 29 April 2004 (application no. 14949/02); Prokopovich v. the Russian Federation of 18 November 2004 (application no. 58255/00), Smirnovykh v. the Russian Federation of 24 July 2003 (applications nos. 46133/99 and 48183/99); "Burdov v. Russia" dated May 7, 2002 (application no. 59498/00) and others.
In the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation there is not even a mention of the Economic Court of the CIS. However, in some cases, the practice of this court is also used, although, it must be admitted, it is rather contradictory.
So, in Determination N 13В01pr-3, the decision of December 8, 1999, the Supreme Court of the Russian Federation was guided by the decision of the Economic Court of the CIS of April 15, 1999 N 01-3 / 5-98, in which the interpretation of Art. 1 Agreement on social and legal guarantees for military personnel, persons discharged from military service, and members of their families, 1992
Bulletin of the Supreme Court of the Russian Federation. 2002. No. 4.
Bulletin of the Supreme Court of the Russian Federation. 2000. N 10. S. 13 - 14.
In Ruling N KAS00-91 of March 14, 2000, the Supreme Court of the Russian Federation referred to the decision of the CIS Economic Court of September 17, 1997 on the interpretation of the Agreement on the Customs Union between the Russian Federation and the Republic of Belarus of January 6, 1995.
In another case, when considering Gavrilenko’s complaint about the invalidation of paragraphs 4, 5 of the instruction of the State Customs Committee of the Russian Federation of November 28, 1996 N 01-14 / 1310 "On the customs clearance of goods", the Supreme Court of the Russian Federation did not recognize the applicant's convincing reference to the decision of the Economic Court of the Commonwealth of Independent States of September 15, 1997, since, as the court established, this decision is not binding on the union state of Belarus and Russia
The Presidium of the Supreme Arbitration Court of the Russian Federation annulled the judicial acts held in the case, referring to the decision of the CIS Economic Court of June 27, 2000 N 01-1 / 1-2000. In paragraph 12 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 25, 1996 "Review of the practice of resolving disputes in cases involving foreign persons considered by arbitration courts after July 1, 1995." , p. 15 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 11, 1999 N 8 "On the operation of international treaties of the Russian Federation in relation to the issues of the arbitration process" The Supreme Arbitration Court of the Russian Federation argues its position by the decision of the Economic Court of the CIS of February 7, 1996 N 10/95 С-
Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of January 20, 2004 N 13111/03 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2004. No. 6.
Bulletin of the Supreme Arbitration Court of the Russian Federation. 1997. No. 3.
At the legislative level, the question of whether and in what capacity acts of international judicial bodies act in Russia needs to be resolved. At the same time, we should not only talk about the European Court of Human Rights. Ignoring the acts of other international judicial bodies does not correspond to the spirit and letter of international law.
Thus, Russia has not created a legal mechanism for the enforcement of international judgments. High courts are also taking steps to fill existing gaps in legislation, but only in relation to decisions of the ECtHR.
In this regard, Part 1 of Art. 13 of the Arbitration Procedure Code of the Russian Federation and Part 1 of Art. 11 of the Code of Civil Procedure of the Russian Federation, it seems necessary to supplement the words after the words of the "Constitution of the Russian Federation" "the norms of international law in force for the Russian Federation."
In addition, I consider it appropriate to supplement Art. 16 of the Arbitration Procedure Code of the Russian Federation, part 5, and art. 13 of the Code of Civil Procedure of the Russian Federation, Part 6, as follows: "The obligation on the territory of the Russian Federation of decisions of international courts and arbitrations is determined by international treaties of the Russian Federation."
It seems that it is necessary to expand the grounds for revising, due to newly discovered circumstances, decisions, court rulings, decisions of the presidium of the supervisory instance court that have entered into force, supplementing part 2 of Art. 392 Code of Civil Procedure of the Russian Federation paragraph 5 of the following content:
"5) the violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms established by the European Court of Human Rights in the course of consideration by the court of a specific case, in connection with the adoption of a decision on which the applicant applied to the European Court of Human Rights."
In order for the activity of the courts to develop at the proper level, a legislative foundation is needed, without which the norms of the ICCPR will not be applied. It is the procedural details, the accuracy, detail and scrupulousness of the procedural norms, the clarity of the requirements and the certainty of the wording that will serve to greater balance, validity and legal correctness of judicial acts, the competent application of the norms of international law in the consideration of specific cases. However, domestic
implementation is not limited to law-making measures. An important role is also played by measures of an organizational nature, which are based on the operational and executive activities of state bodies and individuals to implement the prescriptions of international law. It is necessary to radically change the attitude of law enforcement agencies (in particular, the judiciary) to the norms of international law. Only when the constitutional provision of Part 4 of Art. 15 of the Constitution of the Russian Federation will become a reality, when the norms of international law really become part of the legal system of the Russian Federation, will really have a regulatory effect on domestic relations, and will not be used in decision-making only as an illustrative, additional, subsidiary basis, we will be able to speak with full confidence about integration of our legal system into international law, in terms of creating a single legal field.
See: Rykhtikova L.Yu. Constitutional and legal foundations for the implementation of the norms of international law in the Russian Federation. M., 2004. S. 80.
See: Speech by M.V. Baglai at the All-Russian Conference "Generally Recognized Principles and Norms of International Law, International Treaties in the Practice of Constitutional Justice" // Generally Recognized Principles and Norms of International Law, International Treaties in the Practice of Constitutional Justice. pp. 11 - 12; Vitruk N. On some features of the use of decisions of the European Court of Human Rights in the practice of the Constitutional Court of the Russian Federation and other courts // Implementation of decisions of the European Court of Human Rights in the practice of constitutional courts of European countries: Sat. reports. M., 2006. S. 183 - 192; Speech by V.D. Zorkin at the VIII International Forum on Constitutional Justice "Implementation of decisions of the European Court of Human Rights in the practice of constitutional courts of European countries" // Official website of the Constitutional Court of the Russian Federation: www.ksrf.ru.