The Constitutional Court of the Russian Federation on March 27, 2012 adopted Resolution No. 8-P on a case of examining the constitutionality of clause 1, article 23 of the Federal Law "On International Treaties of the Russian Federation".
This provision of the Federal Law establishes that an international treaty may be applied by Russia on a temporary basis if the treaty so permits.
The Claimant cited, primarily, clause 3, article 15 of the Constitution of the Russian Federation, under which no regulatory act affecting human or civil rights, freedoms and responsibilities may be applicable until it is published officially for general information purposes. In view of this, the Claimant asserted that a treaty applied by the Russian Federation temporarily, if it affects such rights, freedoms and responsibilities and contains rules differing from those prescribed by the national legislation (in the given case – the International Treaty of the Russian Federation as part of the Customs Union, establishing higher customs tariffs for individuals), must be published in Russia officially before it can be so applied.
Most international treaties pertaining to the Customs Union and the Common Economic Space were, prior to their ratification, applied by member countries on a temporary basis.
The Constitutional Court of the Russian Federation judged that:
• Temporary application of international treaties by the Russian Federation prior to their ratification is constitutional and lawful.
• By virtue of international law provisions and its status in the Russian legal system, international treaty rules applied temporarily have, like effective treaties, priority over Russian national laws in the absence of an officially published text, including when they modify the regulatory meaning of human and civil rights, freedoms or responsibilities.
• Treaties applied by Russia temporarily that affect human or civil rights, freedoms and responsibilities and replace statutory rules must be published officially for general information purposes prior to actual implementation of the treaty in the Russian Federation. International treaties applied on a temporary basis and, equally, effective treaties of the Russian Federation may not be applied throughout the country before their official publication.
• Posting the text of the treaty applied with respect to the Claimant on the official website of the Customs Union Commission intended for official publication of the Customs Union resolutions and materials does not make up for the failure to have the treaty officially published in the Russian Federation.
• Until relevant amendments are made to the Russian legislation, international treaties applied temporarily in anticipation of their effective date, affecting human or civil rights, freedoms and responsibilities and introducing rules differing from those prescribed by law must be published officially as prescribed for treaties effective in or ratified by the Russian Federation.
The Constitutional Court also ruled that:
• the federal legislator must, within three months, adopt a procedure for official publication of international treaties applied temporarily whenever they affect human or civil rights, freedoms or responsibilities and introduce rules differing from those prescribed by effective national laws,
• official publication of such treaties must be effected by the same time,
• on expiry of this period, the international treaties applied by Russia temporarily may not be applied further unless they have been published officially.
It should be noted that Russian Constitutional Court Justice G.A. Zhilin gave a dissenting opinion on the case, to the effect that application of a temporarily effective treaty (introducing rules differing from those prescribed by the national legislation) to the Claimant had an adverse effect on his position in terms of customs relations (the Claimant had to pay higher customs charges and bear liability for failure to pay these), so such a treaty must be ratified, not only officially published, before it can be applied lawfully
This provision of the Federal Law establishes that an international treaty may be applied by Russia on a temporary basis if the treaty so permits.
The Claimant cited, primarily, clause 3, article 15 of the Constitution of the Russian Federation, under which no regulatory act affecting human or civil rights, freedoms and responsibilities may be applicable until it is published officially for general information purposes. In view of this, the Claimant asserted that a treaty applied by the Russian Federation temporarily, if it affects such rights, freedoms and responsibilities and contains rules differing from those prescribed by the national legislation (in the given case – the International Treaty of the Russian Federation as part of the Customs Union, establishing higher customs tariffs for individuals), must be published in Russia officially before it can be so applied.
Most international treaties pertaining to the Customs Union and the Common Economic Space were, prior to their ratification, applied by member countries on a temporary basis.
The Constitutional Court of the Russian Federation judged that:
• Temporary application of international treaties by the Russian Federation prior to their ratification is constitutional and lawful.
• By virtue of international law provisions and its status in the Russian legal system, international treaty rules applied temporarily have, like effective treaties, priority over Russian national laws in the absence of an officially published text, including when they modify the regulatory meaning of human and civil rights, freedoms or responsibilities.
• Treaties applied by Russia temporarily that affect human or civil rights, freedoms and responsibilities and replace statutory rules must be published officially for general information purposes prior to actual implementation of the treaty in the Russian Federation. International treaties applied on a temporary basis and, equally, effective treaties of the Russian Federation may not be applied throughout the country before their official publication.
• Posting the text of the treaty applied with respect to the Claimant on the official website of the Customs Union Commission intended for official publication of the Customs Union resolutions and materials does not make up for the failure to have the treaty officially published in the Russian Federation.
• Until relevant amendments are made to the Russian legislation, international treaties applied temporarily in anticipation of their effective date, affecting human or civil rights, freedoms and responsibilities and introducing rules differing from those prescribed by law must be published officially as prescribed for treaties effective in or ratified by the Russian Federation.
The Constitutional Court also ruled that:
• the federal legislator must, within three months, adopt a procedure for official publication of international treaties applied temporarily whenever they affect human or civil rights, freedoms or responsibilities and introduce rules differing from those prescribed by effective national laws,
• official publication of such treaties must be effected by the same time,
• on expiry of this period, the international treaties applied by Russia temporarily may not be applied further unless they have been published officially.
It should be noted that Russian Constitutional Court Justice G.A. Zhilin gave a dissenting opinion on the case, to the effect that application of a temporarily effective treaty (introducing rules differing from those prescribed by the national legislation) to the Claimant had an adverse effect on his position in terms of customs relations (the Claimant had to pay higher customs charges and bear liability for failure to pay these), so such a treaty must be ratified, not only officially published, before it can be applied lawfully
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