Sympathy Judgements of Conscience in the Russian Constitutional Court

Abstract

In this chapter we shall consider sympathy judgements in a particular context where the judges are not authorised to decide on the merits of a particular case but only on the question of law involved. However, in passing their judgements on the question of law the judges are aware of the impact their interpretation of law would have on the people affected by that law. In the previous chapter about the declaratory power of the Scottish High Court, we have already considered a prospective sympathy judgement where the judges have to decide whether a particular act is criminal or not. Nevertheless, the High Court in its decision moves from the merits of a particular case to formulating a rule which will influence future decisions in similar cases. It was shown that because of this impact on future decisions it is not enough to pass a sympathy judgement towards the parties of the case. The judges have to go further and take the perspective of future offenders and victims. This is what we called a prospective sympathy judgement which, though identical in its essential parts to a retrospective sympathy judgement, still has some distinctive characteristics.