Statistical data: 1 May 1996 - 31 August 1996

• 1 decision on the constitutionality of legislation prior to its enactment
• 37 decisions on objections alleging unconstitutionality
There was no relevant constitutional case-law during this period.

Statistical data
1 May 1996-31 August 1996 Total number of decisions: 6 Types of decision:
• Rulings: 6
• Opinions: 0
Categories of cases:
• Interpretation of the Constitution: 0
• Conformity with the Constitution of acts of State bodies: 6
• Conformity with the Constitution of international treaties: 0
• Conflicts of competence: 0
• Observance of a prescribed procedure for charging the President with high treason or other grave offence: 0
Types of claim:
• Claims by State bodies: 3
• Complaints of individuals: 2
• Inquiries of courts: 1

Important decisions

Identification; RUS-96-2-004
a) Russia / b) Constitutional Court / с) / d) 27.03.1996 / e) / f) / g) Rossiyskaya Gazeta, 04.04.1996 / h).

Keywords of the systematic thesaurus:
Institutions - Courts - Procedure.
Institutions - Courts - Ordinary courts - Criminal courts.
Institutions - Courts - Legal assistance.
Fundamental Rights - Civil and political rights -Procedural safeguards - Fair trial - Rights of the defence.

Keywords of the alphabetical index: Lawyer, right of choice / State secret.

Headnotes:
The provisions of an Act, pursuant to which a lawyer could be barred from participating as a defence counsel in criminal proceedings connected with State secrets because he was not authorised to have access to State secrets, were found to be unconstitutional.

Summary:
The proceedings were instituted in the form of individual complaints lodged by citizens against the violation of their constitutional rights by certain sections of the State Secrets Act of the Russian Federation.
The reason for instituting the proceedings was the uncertainty that had arisen as to whether the provisions of the said law, whereby a lawyer could be barred from participating as defence counsel in criminal proceedings connected with State secrets because he was not authorised to have access to State secrets, were in conformity with the Constitution of the Russian Federation.
The Constitution of the Russian Federation, international human rights instruments and federal legislation require the State to grant persons acting in the area of criminal procedure adequate guarantees of the protection of their rights and freedoms. Article 48 of the Constitution of the Russian Federation prescribes the right of everyone to receive qualified legal assistance and the assistance of a lawyer (defence counsel) at all stages of criminal proceedings. Pursuant to Article 14 of the International Covenant on Civil and Political Rights, which is part of the law of the Russian Federation, everyone, during the examination of the charges against him, shall be entitled to communicate with the defence counsel of his own choosing and to defend himself through such counsel.
Consequently, the refusal to allow the accused (the suspect) to take a lawyer of his own choosing on the grounds that the latter is not authorised to have access to State secrets, as well as the proposal made to the accused (the suspect) to choose his counsel from among a limited number of lawyers who have such access, pursuant to the application of the provisions of Section 21 of the State Secrets Act of the Russian Federation to the domain of criminal procedure, unlawfully restricted the constitutional right of citizens to receive qualified legal assistance and the right to an independent choice of counsel (Article 48 of the Constitution of the Russian Federation and Article 14 of the International Covenant on Civil and Political Rights). In conformity with Article 56.3 of the Constitution of the Russian Federation, the above-mentioned constitutional rights may not be restricted under any circumstances. The fact that the choice of counsel by the accused is subject to counsel's having authorised access to State secrets is also at variance with the adversarial principle and the principle of equal rights for the parties to proceedings, as set forth in Article 123.3 of the Constitution of the Russian Federation.
According to Article 2 of the Constitution of the Russian Federation, the individual and his rights and freedoms are the supreme value. Human and civil rights and freedoms determine the meaning, content and im-plementation of laws and the functioning of legislative and executive authority and are guaranteed by law (Article 18 of the Constitution of the Russian Federation).
Proceeding on the basis of these constitutional provisions, the legislator, in defining the measures and procedures for protecting State secrets, must only make use of those which, in the given situation of the application of the law, exclude the possibility of a disproportionate restriction of human and civil rights and freedoms. In the framework of criminal procedure, these may result in particular in the exclusion of the public from hearings, in warning participants in the trial not to divulge State secrets made known to them in connection with the criminal proceed-ings, and in the prosecution of these persons if State secrets are divulged. Protecting State secrets during criminal proceedings is also secured by the provisions of the Regulations of the Bar of the RSFSR, approved by the RSFSR Act of 20 November 1980, which require lawyers to respect professional secrecy, not to commit offences incompatible with their membership of the Bar and to demonstrate model behaviour.
The legislator is also entitled to introduce other measures for safeguarding State secrets during criminal proceed-ings, but these must, however, have a criminal procedure aspect and be consistent with the importance of the secret and the legal status of the participants in the criminal proceedings.
The Constitutional Court of the Russian Federation found the text of Section 21 of the Russian Federation's State Secrets Act to be in conformity with the Constitution.
The application of the provisions of this section to lawyers participating as defence counsel in criminal proceedings and the barring from participation in the case of those not authorised to obtain access to State secrets, however, was held to be unconstitutional.
The Federal Assembly of the Russian Federation must, in light of this Decision, make the necessary changes to the legislation in force.

Languages: Russian, French (translation by the Court).

Identification: RUS-96-2-005
a) Russia / b) Constitutional Court / с) / d) 13.06.1996 / e) / f) / g) Rossiyskaya Gaze/a, 02.07.1996 / h).

Keywords of the systematic thesaurus:
Constitutional Justice - Effects - Temporal effect.
Institutions - Courts - Procedure.
Institutions - Courts - Ordinary courts - Criminal courts.
Fundamental Rights - Civil and political rights - Individual liberty.
Fundamental Rights - Civil and political rights - Procedural safeguards - Access to courts.
Fundamental Rights - Civil and political rights - Procedural safeguards - Fair trial - Trial within reasonable time.
Fundamental Rights - Civil and political rights - Procedural safeguards - Detention pending trial.

Keywords of the alphabetical index: Notification of charges / Police custody.

Headnotes:
The rule of criminal procedure according to which the time spent by the accused and his defence counsel consulting the case file is not taken into account in calculating the duration of police custody, is unconstitu-tional as a law-enforcement measure is unconstitutional because it unduly restricts the civil right to liberty and to legal protection.

Summary:
The proceedings were instituted because a citizen had complained that his constitutional rights and freedoms had been violated by Article 97.5 of the RSFSR Code of Criminal Procedure, according to which the time spent by the accused and his defence counsel consulting the case file is not taken into consideration for calculating the duration of police custody as a law-enforcement measure. According to the applicant, this rule was not consistent with a number of Articles of the Constitution, because it unduly restricted his right to individual freedom and inviolability as well as his right to legal protection and resulted in a violation of his rights and freedoms arising out of the exercise by other persons of their rights.
This unwarranted increase in the duration of police custody derived not only from the content of Article 97.5 of the RSFSR Code of Criminal Procedure as such, but also from the nature of the rules ensuring the right of the accused to receive complete information on the substance of an accusation and the evidence on which it is based. Consequently, finding the contested rule unconstitutional was not in itself sufficient for securing the rights of defence of the accused.
Given the task of protecting society against crime by a justifiable application of criminal law, the legislator must try to settle the above questions by appropriate legislation and regulations.
The most effective way to guarantee the constitutionality of criminal procedures would appear to be for the legislator to introduce the necessary changes to the system of criminal procedure in force or to create new legal instruments. If the courts were to correct legal procedure through a direct application of the right to legal protection, which is enshrined in the Constitution, it would still be difficult to guarantee the equality of citizens before the law and the courts through the practical application of the legal rules. However, the adoption of relevant legislative decisions which take into account the position of the Constitutional Court requires time.
In the event, the Constitutional Court found that Article 97.5 of the RSFSR Code of Criminal Procedure was unconstitutional.
Article 97.5 of the RSFSR Code of Criminal Procedure will therefore lapse six months after the announcement of this Decision.
The Federal Assembly of the Russian Federation must, within six months from the announcement of this Decision, resolve the question of amending the law of criminal procedure as regards the guarantee of the right of everyone to liberty, enshrined in the Constitution of the Russian Federation, in cases of arrest and remand in police custody as a law-enforcement measure.
Pursuant to Article 46.1 of the Constitution, before questions associated with the right of everyone to liberty can be resolved by legislation, persons accused of committing a crime are entitled to submit to the court an appeal challenging the legality and the validity of remand in custody (detention on remand) at all stages of the criminal proceedings, including the period of consultation of the case file by the accused and his defence counsel.

Languages: Russian, French (translation by the Court).
 
Identification: RUS-96-2-006
a) Russia / b) Constitutional Court / с) / d) 17.07.1996 / e) / f) / g) Rossiyskaya Gazeta, 24.07.1996 / h).

Keywords of the systematic thesaurus:
General Principles - Federal State.
Institutions - Federalism and regionalism – Distribution of powers - System.

Keywords of the alphabetical index:
Federation, constituent entities, equality of rights / Federation, constituent entities, territory.

Headnotes:
The fact, enshrined in the Constitution, that a constituent entity of the Federation, ie an Autonomous District, is part of another such entity (a Region) presupposes a special State and legal relationship between them on the basis of the equality of rights of all constituent entities of the Federation. Given that the Constitution does not directly define the specific features of the delimitation of the powers of these constituent entities, the Constitu-tional Court considers that the fairest solution in the current situation is that the said entities should settle their disputes between themselves.

Summary:
Proceedings were instituted because of requests by the Duma of the Autonomous District of Khanty-Mansiysk and the State Duma of the Autonomous District of Yamalo-Nenets for a review of the constitutionality of certain provisions of the status of the Region of Tyumen which, in the view of the applicants, detracted from the status of the Autonomous District as a constituent entity of the Russian Federation, deprives it of the right to its own territory and violated the principles of the equality of rights and the autonomy of the constituent entities of the Russian Federation.
The Constitution proclaims the principle of the equality of rights of the constituent entities of the Russian Federation. However, the application of this principle to the Autonomous Districts that are part of a territory or Region has special features. At the time of the adoption of the Constitution of the Russian Federation (1993), the Autonomous District of Khanty-Mansiysk and the Autonomous District of Yamalo-Nenets were part of the region of Tyumen under the legislation then in force.
This situation still applies. However, through the inclusion of this constituent entity of the Federation (ie the Autonomous District) in the territory (the Region), the latter acquired a qualitatively different character in the current circumstances, now that all the constituent entities of the Federation enjoy equality of rights as proclaimed in the Constitution.
The inclusion of the Autonomous District in the territory (the Region), as enshrined in the Constitution, presup-poses a particular State and legal relationship between them. The relations between the Autonomous District and the territory (the Region) of which it is a part differ from their relations with the other constituent entities of the Federation. The inclusion of the Autonomous District in the territory (the Region) requires the two constituent entities of the Federation to base their relations on the State and legal realities historically established at the time of the adoption of the Constitution and not at variance with it. It presupposes "a certain extension, on the basis of reciprocal agreements and understandings, of the jurisdiction of the State power of the territory (the Region) over the territory of the Autonomous District.
Given that the Constitution does not directly refer to the special features of the delimitation of the powers of these constituent entities of the Federation, the Constitutional Court, in the absence of a federal law and/or a treaty (or treaties or other agreements) prescribed by Article 66.4 of the Constitution, must refrain from defining the concrete conditions of the relations between the region of Tyumen and the Autonomous Districts of which it is made up.
For this reason, the Constitutional Court considered that the fairest solution in the current situation would be for the constituent entities of the Russian Federation to settle their disputes themselves. The Constitution expressly provided for this procedure, which is based on the equality of rights and all the necessary conditions existed for such a solution.
The Constitutional Court of the Russian Federation therefore postponed the case until relations between the relevant constituent entities of the Federation are settled, and recommended that the bodies concerned use the conciliation procedures under Article 85.1 of the Constitution and that the Federal Assembly of the Russian Federation step up the drafting and adoption of the federal law on this question.

Languages: Russian, French (translation by the Court).