Ruling of the Constitutional Court  of 17 January 2012 № 174-О-О on the refusal to accept for consideration the complaint of the citizen Iu.R.Iudin against violation of his constitutional rights by Articles 301 and 312 of the Criminal Procedure Code of the Russian Federation

Legal issue: whether the contested provisions are constitutional, since they do not envisage the right of the convicted person and his advocate to have access to a dissenting opinion of a member of the panel of judges?

Ratio decidendi: the Court refused to accept the complaint for consideration, as being not in conformity with the criteria of admissibility. At the same time, the Court pointed out that judicial dissent is not an act having an independent significance and determining the rights and duties of parties to criminal proceedings or having other procedural consequences. The rights of the accused are affected directly not by the dissenting opinion of a judge, but by the sentence passed as a result of the trial.  The contested provisions of the Criminal Procedure Code may not be regarded as violating the constitutional rights of the applicant. This, however, does not preclude the federal legislator from resolving the issue of the convicted person's and his advocate's access to judicial dissent in a different way – e.g. in a fashion similar to the solution already given by the legislation on constitutional, civil (exercised both by general courts under the rules of Civil Procedure Code and by arbitrazh (commercial) courts under the rules of the Arbitrazh Procedure Code), and administrative proceedings, in which judicial dissents are open to the parties and/or general public.

Dissenting opinion:
  • Justice Ghadzhiev, arguing that  the Court ought to consider the case in public hearings, the issue of access to dissenting opinions being closely connected with the recognition or, on the contrary, denial of the courts' right to develop law; that there is an undoubted correlation between the right to judicial dissent, liberalisation of court practice, the development of law by way of judicial decisions and the constitutional principle of democracy;  possibly, the right of judges to dissent should be restricted by making requirements to its contents, not by restricting the right of the parties to access such dissent.

  • Justice Zhilin, who opined that Court's conclusion as to there being no violation of the constitutional rights of the applicant is premature; it is doubtful that the dissenting opinion may be covered by the principle of secrecy of judicial deliberations; it is hardly possible to conclude that it does not affect the rights and freedoms of citizens as parties to court proceedings, and therefore the complaint of the applicant actually met the admissibility criteria.

  • Justice Kniazev, who believes that dissenting opinion does not impinge upon the secrecy of judicial deliberations, the practice of making it secret being merely a rudimentary attitude characteristic of the Soviet criminal procedure which was not particularly propitious towards the right of the accused to defend himself,   and also towards the independence of judges and   transparent dispensation of justice.

  • Justice Kleandrov, in whose view the prohibition against announcing the dissenting opinion together with the verdict of the court is by no means equivalent to the prohibition against having access to it; by present ruling the Constitutional Court effectively legalised the prohibition against the access of convicted persons and their advocates to dissenting opinions of  judges;  it would be right to accept the complaint for consideration and hold the contested provisions of the Code to be unconstitutional because of their   being extremely vague.

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Subject area:
Court Proceedings criminal procedure