RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of June 27, 2013 No. 21

About application by courts of law of the Convention on human rights protection and fundamental freedoms of November 4, 1950 and protocols to it

According to the principle of subsidiarity which is one of the basic principles of activities of the European Court of Human Rights, protection of the human rights and freedoms provided by the Convention on human rights protection and fundamental freedoms of November 4, 1950 and Protocols to it (further - the Convention and Protocols to it), it is assigned first of all to bodies of the state, including to courts.

For the purpose of ensuring uniform application by courts of law of the Convention and the Protocols to it ratified by the Russian Federation the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 9 and 14 of the Federal constitutional Law of February 7, 2011 No. 1-FKZ "About courts of law in the Russian Federation", decides to make to courts the following explanations:

1. The convention and Protocols to it are international treaties of the Russian Federation, and in case of their application courts of law (further - courts) need to consider the explanations containing in the resolution of the Plenum of the Supreme Court of the Russian Federation of October 31, 1995 No. 8 "About some questions of application by courts of the Constitution of the Russian Federation when implementing justice" and also in the resolution of the Plenum of the Supreme Court of the Russian Federation of October 10, 2003 No. 5 "About use by courts of law of the conventional principles and rules of international law and international treaties of the Russian Federation".

2. As appears from provisions of article 46 of the Convention, article 1 of the Federal Law of March 30, 1998 No. 54-FZ "About ratification of the Convention on human rights protection and fundamental freedoms and Protocols to it" (further - the Federal Law on ratification), legal line items of the European Court of Human Rights (further - European Court, Court) which contain in the final court orders accepted concerning the Russian Federation are obligatory for courts.

For the purpose of effective protection of human rights and freedoms by courts the legal line items of European Court stated in the resolutions which became final which are accepted concerning other State Parties of the Convention are considered. At the same time the legal line item is considered by court if circumstances of the case considered by it are similar to the circumstances which became subject of the analysis and conclusions of European Court.

3. Legal line items of European Court are considered in case of application of the legislation of the Russian Federation. In particular, content of the rights and freedoms, stipulated by the legislation the Russian Federation, shall be determined taking into account the content of the similar rights and freedoms opened by European Court in case of application of the Convention and Protocols to it.

Draw the attention of courts that the legislation of the Russian Federation can provide higher level of protection of human rights and freedoms in comparison with the standards guaranteed by the Convention and Protocols to it in interpretation of Court. In such cases to courts, being guided by article 53 of the Convention, it is necessary to apply the provisions containing in the legislation of the Russian Federation.

4. In order to avoid violation of human rights and freedoms, including their unreasonable restriction, legal line items of European Court are considered in case of application not only the Convention and Protocols to it, but also other international treaties of the Russian Federation (the subitem "c" of Item 3 of article 31 of the Vienna convention on the right of international treaties of May 23, 1969 (further - the Vienna convention).

5. As appears from provisions of the Convention and Protocols to it in interpretation of European Court, restriction of human rights and freedoms (intervention in human rights and freedoms) are understood as any decisions, actions (failure to act) of public authorities, local government bodies, officials, government and local government officers, and also other persons, owing to acceptance or implementation (non-realization) of which concerning person declaring expected violation of its rights and freedoms obstacles for realization of its rights and freedoms are created. For example, proceeding from practice of European Court use of the image of the citizen without its consent represents restriction of the appropriate rights guaranteed by the Convention.

At the same time owing to part 3 of article 55 of the Constitution of the Russian Federation, provisions of the Convention and Protocols to it any restriction of human rights and freedoms shall be based on the Federal Law; pursue the socially important, legal aim (for example, ensuring public safety, protection of morals, morality, the rights and legitimate interests of other persons); be necessary in democratic society (pro rata to the pursued socially important, legal purpose).

Non-compliance with one of these criteria of restriction represents violation of human rights and freedoms which are subject to judicial protection in the procedure established by the law.

Some human rights and freedoms guaranteed by the Convention and Protocols to it cannot be limited under no circumstances (the right not to be exposed to tortures, etc.).

6. The bases for restriction of human rights and freedoms can be provided not only the Federal Law, but also the international treaty of the Russian Federation (issue of person to foreign state for implementation of criminal prosecution in pursuance of the corresponding international treaty, etc.).

7. The purpose of the Convention and Protocols to it are effective recognition and protection of the violated human rights and freedoms therefore provisions of these international treaties of the Russian Federation cannot form the basis for their restriction.

8. Courts by hearing of cases always should prove need of restriction of human rights and freedoms proceeding from the established actual circumstances. Draw the attention of courts that restriction of human rights and freedoms is allowed only if there are attributable and good causes for such restriction and also if the balance between legitimate interests of person whose rights and freedoms are limited, and legitimate interests of other persons, the states, societies is observed.

For example, the satisfaction with court of the petition of the debtor for delay of execution of the court decree on civil case for short period of time not always demonstrates violation of the right of the claimant to execution of the court decree in reasonable time guaranteed by Item 1 of article 6 of the Convention.

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