On the Case Testing the Constitutionality of Articles 220¹ and 220² of the Criminal Procedure Code of the RSFSR in Connection with a Complaint by Citizen V.A. Avetyan

 

The Constitutional Court of the Russian Federation, consisting of presiding judge N.V. Vitruk, judges M.V. Baglai, G.A. Gadzhiev, A.L. Kononov, T.G. Morshchakova, Yu.D. Rudkin, N.V. Seleznyov, B.S. Ebzeyev and V.G. Yaroslavtsev,

taking guidance from Article 125 (part four) of the Constitution of the Russian Federation, clause 3 of part one, parts two and three of Article 3, clause 3 of part two of Article 22, and Articles 96, 97 and 99 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation,

has reviewed in an open session the case testing the constitutionality of Articles 220¹ and 220² of the Criminal Procedure Code of the RSFSR.

The impetus for the consideration of the case, in accordance with part one of Article 36 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, was a complaint from citizen V.A. Avetyan against the violation of his constitutional right to judicial defense by the norms of the Criminal Procedure Code of the RSFSR applied in his case.

The basis for the consideration of the case, pursuant to part two of Article 36 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, was the discovered uncertainty in the question of whether the provisions of the disputed articles of the Criminal Procedure Code of the RSFSR, pursuant to which the right to appeal an arrest in court is held only by persons held in custody, or his defender or legal representative, at the place of such detention, conform to the Constitution of the Russian Federation.

Having heard the report of reporting-judge T.G. Morshchakova, statements from representatives invited to the session: from the State Duma – deputy A.M. Traspov, a member of the Committee for Legislation and Judicial-Legal Reform, and G.P. Ivliev, head of the division for judicial reform of the above-named Committee; from the Ministry of Justice of the Russian Federation – L.L. Panteleyeva, deputy head of the department for the drafting of legislation on judicial reform and combating legal violations; from the Federal Union of Lawyers of the Russian Federation – M.D. Smirnov, member of the Moscow Oblast Collegium of Lawyers; and having studied the materials presented, the Constitutional Court of the Russian Federation

established:

1. That in relation to citizen of the V.A. Avetyan a criminal case was instituted on the basis of an accusation of the commission of crimes specified in Articles 122 (malicious evasion of the payment of alimony) and 130 (libel) of the Criminal Code of the RSFSR, and a ruling was handed down on the imposition of incarceration against him as a measure of restraint, which was not executed.  That ruling, dated August 16, 1990 was not revoked up to the time when the criminal case was closed on April 16, 1994.  Thus, the decision on the incarceration of citizen V.A. Avetyan was in effect over the course of nearly four years; in connection with this he was declared wanted, which was announced in the local newspaper.

Citizen V.A. Avetyan filed complaints with courts of general jurisdiction against the unlawfulness of the ruling on the imposition of incarceration in relation to him as a measure of restraint and asked that the ruling be overturned.  However, he was twice denied the consideration of his complaint on the basis of the fact that, in accordance with Article 220¹ and 220² of the Criminal Procedure Court of the RSFSR, such complaints may be brought only by persons actually held in custody, and must be examined by the court at the place of such incarceration.

2. That in his complaint to the Constitutional Court of the Russian Federation, the applicant argues that the Articles 220¹ and 220² of the Criminal Procedure Code of the RSFSR which were applied in his case restrict his right to freedom and personal inviolability, to judicial defense, and contravene the equality proclaimed in the Constitution of the Russian Federation of all before the law and the courts and, therefore, does not conform to Articles 19, 22, 45, 46 and 47 of the Constitution of the Russian Federation.

The Constitutional Court of the Russian Federation deemed the complaint admissible since, as required in Article 97 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, the contested provisions of the law (in this case – the Criminal Procedure Code of the RSFSR) were applied in the applicant's case and affect his constitutional rights.

Courts of general jurisdiction, in applying Articles 220¹ and 220² of the Criminal Procedure Code of the RSFSR, relied on the literal sense of the norms, to which they are bound by Article 120 of the Constitution of the Russian Federation, according to which courts must rigorously adhere in their activity both to the Constitution of the Russian Federation and to federal law.

At the same time in the Rulings of the Plenum of the Supreme Court of the Russian Federation No. 3 of April 27, 1993 On the Practice of Judicial Verification of the Lawfulness and Justifiability of an Arrest or Extension of a Term of Custody and No. 6 of September 29, 1994 On the Implementation of Courts of the Ruling of the Plenum of the Supreme Court of the Russian Federation of April 27, 1993, as well as in materials from the summarization of court practice on these issues it is emphasized that courts must verify compliance with all norms of the Criminal Procedure Code of the RSFSR regulating the application of that measure of restraint, and rigorously ensure in practice the rights of persons who contest in court the imposition of arrest.  At the same time, courts of general jurisdiction, in recognizing the restriction introduced by the Criminal Procedure Code of the RSFSR on the right to court appeal, did not use the use the right envisaged in Article 125 (part 4) of the Constitution of the Russian Federation, as well as in clause 3 of part one of Article 3 and Articles 101, 102 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, to petition the Constitutional Court of the Russian Federation with an inquiry on the conformity of the aforementioned Articles of the Criminal Procedure Code of the RSFSR to the Constitution of the Russian Federation.  At the same time, the court of general jurisdiction does not have the right to declare unconstitutional the law which is subject to application in a specific case being considered by it.  This question is under the exclusive jurisdiction of the Constitutional Court of the Russian Federation, which in its turn does not verify the lawfulness and justifiability of decisions of courts of general jurisdiction, but exclusively decides questions of law.

3. That from the content of Articles 220¹ and 220² of the Criminal Code of the RSFSR it follows that it is not the holding in custody of the accused or suspected person, but rather the lawfulness and justifiability of the application of that measure which is subject to contesting and judicial verification.

The legislator understands the imposition of a measure of restraint to be the issue by an agency of inquiry, investigator or procurator of a ruling on the selection thereof (Articles 89 and 92 of the Criminal Procedure Code of the RSFSR).  A ruling on the application of a measure of restraint in the form of holding in custody, including in cases where it is not executed, affects the rights and liberties of the citizen involved as the accused or as a suspect.  From the time of the issue of the ruling, state bodies have the right to limit the freedom of the aforementioned persons and impose on them corresponding enforcement measures.  From that time the accused or suspect has the right to appeal the application of the measure of restraint, which is explained to them during the announcement of the ruling issued on this (part one of Article 92 of the Criminal Procedure Code of the RSFSR).  Articles 220¹ and 220² of the Criminal Procedure Code of the RSFSR determine the procedure for this appeal and thus the realization of the constitutional right to appeal for judicial protection set forth in Article 46 of the Constitution of the Russian Federation.

According to the Constitution of the Russian Federation this right may not be limited. Permissible limitations of constitutional rights in accordance with Article 55 (part 3) of the Constitution of the Russian Federation may be introduced by the legislator solely for the purposes of defending the foundations of the constitutional order, morality, health, the rights and lawful interests of other persons, and ensuring the defense of the country and the security of the state.  The right to judicial protection can in no case enter into conflict with those purposes and therefore may not be restricted.  It for that reason that the right to judicial protection is classified under Article 56 (part 3) of the Constitution of the Russian Federation as among such rights and liberties which may not be limited under any circumstances.  Articles 220¹ and 220² of the Criminal Procedure Code of the RSFSR, in retreating from that provision, restrict the right to judicial appeal for certain categories of accused and suspected persons.

4. That the right to judicial protection acts as a guarantee in relation to all constitutional rights and liberties.  Its elaboration in Articles 220¹ and 220² of the Criminal Procedure Code of the RSFSR should guarantee the constitutional rights to the protection by the state of personal dignity, as well as to freedom and personal inviolability.

The preamble of the International Covenant on Civil and Political Rights states that the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

In accordance with Article 21 of the Constitution of the Russian Federation, the state must protect personal dignity in all spheres, which is confirmed by the priority of individuals and their rights (Article 17, part 2, and Article 18 of the Constitution of the Russian Federation).  From this it follows that individuals in their interrelations with the state act not as an object of state activity, but as equal subjects, who may protect their rights through any means not prohibited by law (Article 45, part 2, of the Constitution of the Russian Federation) and to have disputes with the state in the person of any of its bodies.  No one may be limited in the defense of his dignity, as well as all rights associated therewith, before the courts.

5. That the constitutional right to freedom and personal inviolability means that a person may not be denied freedom and held in custody based upon an arbitrary action of authorities.  The issue of a ruling on the selection of detention in custody as a measure of restraint always infringes upon the right to freedom and personal inviolability, irrespective of whether or not this decision is actually executed.  Not only actual limitations, but also the appearance of the danger of such, principally the threat of losing freedom, violate the inviolability of the person, including psychological inviolability, and exert pressure on a person's consciousness and actions.

At the same time both executed rulings on detention in custody and those not actually executed may be unlawful or unjustified.  The guarantee against such arbitrary restrictions on the freedom and personal inviolability is the right to demand a judicial review of the grounds for the issue of decisions on detention in custody.  Any danger of the limitation of freedom and personal inviolability, including in the presence of lawful grounds, must be opposed by the right to judicial appeal.

6. That the restriction of the group of persons having the right to judicial appeal through the procedure in Articles 220¹ and 220² of the Criminal Procedure Code of the RSFSR to only those who are held in custody contravenes Article 19 of the Constitution of the Russian Federation, which enshrines the equality of all before the law and the courts.

The equality of all before the law and the courts does not exclude differences in fact or the necessity of the legislator taking account of them.  However, this must not lead to a limitation of rights and liberties in respect of which, according to the Constitution of the Russian Federation, such restriction is inadmissible.  In addition, in differentiating between the actual status of persons who only should be arrested or have already been subjected to preliminary detention, may not influence the decision of the question of the right to demand them or the obligation of the court to verify the lawfulness of the ruling on the arrest.  The institution of the judicial appeal of decisions on arrest, according to the sense of the current Criminal Procedure Code of the RSFSR, has as its objective the verification of the very lawfulness and justifiability of rulings concerning the application of this measure of restraint.  The limitation of the right to judicial appeal for persons who in the presence of a decision on their detention in custody were not actually arrested does not conform to that objective.  The prohibition of a judicial appeal of a ruling handed down but not actually executed gives the opportunity to agencies of inquiry, investigators and procurators to retreat from the requirements established in law for the grounds to impose this measure, since they would not be the object of judicial review.

Thus, Articles 220¹ and 220² of the Criminal Procedure Code of the RSFSR contain provisions which limit a number of constitutional rights and liberties, which contravenes Articles 18 and 55 (part 2) of the Constitution of the Russian Federation, whereby laws which revoke or limit those rights must be issued or effective in the Russian Federation.

On the basis of the foregoing and taking guidance from part one of Article 71, and Articles 72, 75 and 100 of the Federal Constitutional Law of the Russian Federation On the Constitutional Court of the Russian Federation, the Constitutional Court of the Russian Federation

hereby rules:

1. That the provision of Article 220¹ of the Criminal Procedure Code of the RSFSR which restricts the group of persons having the right to judicial appeal of a ruling on the imposition on them of detention in custody as a measure of restraint to only those persons held in custody, and the provision associated therewith of Article 220² of the Criminal Procedure Code of the RSFSR on the verification by courts of the lawfulness and justifiability of the imposition of detention in custody only at the place of the person's detention in custody, do not conform to the Constitution of the Russian Federation, its Article 46 (parts 1 and 2), as well as Articles 19 (part 1), 21 (part 1), 22 (part 1) and 55 (part 3).

2. According to parts one and two of Article 79 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation this Ruling is final, is not subject to appeal, shall enter into force without delay after its promulgation, and shall be effective directly.

3. According to Article 78 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, this Ruling shall be published without delay in Sobraniye zakonodatelstva Rossiiskoi Federatsii, Rossiiskaya gazeta, as well as other official publications of bodies of state authority of the Russian Federation.  The Ruling must also be published in Vestnik Konstitutsionnogo Suda Rossiiskoi Federatsii.
 

Constitutional Court of the Russian Federation

No. 4-P
 
 
 
 

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