The role of the Russian constitutional court in protecting the rights of active duty and retired servicemen.

• Author: Tuzmukhamedov, Bakhtiyar R.

1. INTRODUCTION

   Some time ago this author was approached by a fellow lawyer from the United States who boasted a long and distinguished legal career in academia, government and private practice. My friend was asking on behalf of creators of the CBS "JAG" television show whether a US military lawyer could represent a Russian serviceman in a Russian military court. The hypothetical case was about an officer disobeying a superior's unlawful orders on the battlefield. (1) Judging from the results of brief research, completed with the assistance of civilian experts in criminal law and procedure, as well as with military colleagues from the Legal Service of the Armed Forces, that would be a very distant possibility at best. The then current Code of Criminal Procedure of 1960, (2) which through a patchwork of amendments, retained little semblance to the original text by the turn of the Millenium, (3) would not allow a lawyer, other than a properly certified member of an accredited collegium of advocates, to be by the side of his or her client and gain access to all the evidence at the pre-trial phase. (4) The court may admit a person chosen by a defendant to represent him or her, but only when the case reaches the courtroom. (5) A presiding judge at the military court may well find a few good reasons to bar an outsider, let alone a foreign military lawyer, from the case. (6)

   However, it is not totally impossible to envision a situation where a foreign lawyer could represent a party in the Constitutional Court of the Russian Federation. There is no explicit prohibition in the law, and the Court does not often hear cases which involve sensitive information that judges or parties would be reluctant to share with a foreigner. Current judges, and there are nineteen on the bench, would likely not mind a lawyer speaking with an accent or communicating through an interpreter.

   This brief article will first introduce a foreign reader to the Russian Constitutional Court and its powers. Next, it will discuss the categories of cases the Court may decide. It will then discuss several Constitutional Court decisions of relevance to the military.

2. JURISDICTION OF THE CONSTITUTIONAL COURT

   The Constitutional Court of the Russian Federation was first established in 1991 in the wake of the collapse of the Soviet Union (USSR). The sources of its authority were the Constitution of the Russian Federation of 1978, with major amendments introduced immediately prior to and in the aftermath of the break-up of the USSR, (7) and the Law "On the Constitutional Court of the Russian Soviet Socialist Federal Republic" of 199l, (8) as amended. The Court decided its first case in February 1992. (9) It failed to stay clear of the power struggle between the President and the Parliament that reached its violent climax in the fall of 1993, and it was suspended until March 1995. (10)

   Currently the Constitutional Court derives its powers from the Constitution of 1993 (11) and the Law "On the Constitutional Court of the Russian Federation" of 1994, as amended. (12) It is part of the three-tiered judicial system, (13) but unlike the Supreme Court and the Higher Court of Arbitration that sit at the apex of their pyramids of general jurisdiction and of arbitration, the Constitutional Court does not have such a foundation.

   Article 125 of the Constitution and Article 3 of the Law "On the Constitutional Court" describe categories of cases that may be decided by the Court. The three categories are (1) cases involving legislative acts petitioned by public authority, (2) cases involving jurisdictional disputes between authorities, and (3) cases involving review of a law applied in a particular case--petitioned by either private parties or the courts.

   1. Legislative Acts Petitioned by Public Authority

      The first category of cases the Court may hear involve legislative acts passed by public authorities, whether federal or regional. In these cases, only public authorities may petition the Court. Additionally, these cases need not arise from any on-going dispute--any party with due authority may request an abstract review of a statute. When confronted with such petitions, the Court rules on the constitutionality of federal laws and normative acts issued by the President or by either chamber of the Federal Assembly, that is, Parliament, or by the Government.

      Among possible cases are laws or decrees that regulate military service, defense or other national security matters. In 1995 the Court heard a notable case regarding the constitutionality of the President's decision to use military force to quell insurgency in the Chechen Republic. The Court was petitioned by deputies of both chambers of the Federal Assembly. In deciding that case, the Court did not specifically discuss the rights of servicemen. (14) However, it is worth noting that in its decision the Court invoked Protocol II Additional to Geneva Conventions regarding the application of international humanitarian law. The Court directed the legislators to take the Protocol into account while modifying laws regulating the use of armed forces. The Ministry of Defense implemented that decision by directing that legal training in International Humanitarian Law be an integral part of combat training. (15)

      The Constitutional Court may also rule on the constitutionality of constitutions, charters and laws of the component entities of the Russian Federation, as well as on treaties concluded by those entities with the Federal authorities and between those entities. One possible scenario for court review would be when a law passed by a constituent entity interferes with matters that, under the Constitution, fall under exclusive Federal jurisdiction. One such provision would be Article 71 (l)of the Constitution which refers to such matters as "defense and security." For example, a case falling under this rubric could potentially arise out of a Declaration of the State Council of Tatarstan that was adopted ten days after the upper chamber of the Federal Assembly authorized the deployment of a Russian unit as part of Kosovo Forces. In that Declaration the legislative body of an influential constituent entity of the Russian Federation stated that it would be "inadmissible for Tatarstanians to be part of the military un its of the Armed Forces of the Russian Federation that are being deployed in Kosovo". (16) However, the emerging conflict had been resolved through the political process before the issue came before the Court.

      Finally, the Court may decide whether international treaties that have not yet come into force conform with the Constitution. Of relevance to this discussion could be possible cases about the constitutionality of international treaties on collective defense, on deployment of forces abroad, and on their status. The closest the Constitutional Court has ever come to deciding such cases was when it ruled that a petition contesting the constitutionality of the Treaty on Friendship...