Role of resolutions of the constitutional court of the Russian Federation in perfection of the federal Constitution

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Abstract work

Role of resolutions of the constitutional court of the Russian Federation in perfection of the federal Constitution

Constitutions of the states regulate the most important public relations. The society is interested in stability of constitutions. In the opinion of N.V. Vitruk "Stability of the constitution is shown in firmness of its instructions, in preservation of high degree of stability and dependence on influence of the political forces varying at power. As the constitution has deep influence on the whole public and legal order, the uncertainty of some norms can lead to instability in the society" [1].

At the same time, the constitution cannot be constant. Attitudes to the constitution, to state and social order, presence of political forces can change. Constitutions have always undergone modifications, when there arose the transition from the authoritative political mode to the democratic and vice versa. K.V. Aranovskiy has noted that constitutions are usually established counting upon distant political prospects, not for one generation. Naturally, its authors cannot expect all complexities with which their followers can face. Therefore in the constitutional structure there exist "…two elements, each of which carries out its own function, - the statistical part of the constitution and its dynamic component. In its statistical part the constitution is essentially constant. It allows constitution to remain the same, creates continuity and transfer of the constitutional system from generation to generation" [2].

In the world constitutional practice there exist both "flexible", and "rigid" constitutions that reflects a rather easy order of their changes or, on the contrary, "complicated". The Constitution of the Russian Federation by the way of modification relates to the category of super rigid: regulations of chapters 1, 2 and 9 cannot be reconsidered by the Federal Assembly, and amendments to chapters 3-8 of the Constitution are admitted in the order stipulated for adoption of the Federal Constitutional Law, and come into force in no event after its approval by the organs of the legislative power by not less than two thirds of the subjects of the Russian Federation.

The Constitution of the Russian Federation of 1993 has undergone no changes. The twelve-year term of existence of the new Russian Constitution does not yet allow to make the universal conclusion about its value in the life of the society, to estimate correctly its weak and strong sides. But even now it is possible to say, that it has greatly outstripped the current legislation and has not exhausted the potential. The Federal Constitutional Law "About the Supreme Court of the Russian Federation" has not been adopted yet, and, hence, the judicial reform has not been finished. Since July, 2002 in the country the rules of the habeas case have been operating. The Federal Constitutional Law about the Constitutional Assembly has not been adopted, therefore it is impossible to estimate the democratism of the established way of revision of the Constitution. But it does not mean, that the Constitution of the Russian Federation has not developed within the last decade. It has been improved, first of all, by adoption of the resolutions of the Constitutional Court of the Russian Federation in which the constitutional norms have been exposed to interpretation, have been interpreted on account of the conventional principles and norms of international law. Constant regeneration of the Constitution in new public conditions is taking place. Chairman of the Supreme Court of the United States of America John Marshall spoke about the opportunity of such process specifying that: "we interpret the constitution which will exist for centuries and which should be adapted to various forms of human activity" [3].

According to well-known American jurist L. Fridmen only the naive trust, that the Supreme Court of the USA only interprets the text of the Constitution, that is examinees, what it means or what contents it contains. The court goes further than simple interpretation - it invents and expands the constitutional doctrine [4].

The constitutional courts make various decisions: about interpretation of the constitution, about recognition of statutory acts or their parts corresponding or not corresponding to the constitution, on results of consideration of disputes on the competence between the organs of the government, etc. However, the greatest influence on development of the constitution is rendered by resolutions of the court about interpretation of the constitution. Without interpretation by the court of separate regulations of the constitution their application becomes impossible as the uncertainty in their understanding arises.

The example can serve the Resolution of the Constitutional Court of the Russian Federation from April 12th, 1995 [5].

The ground for consideration of the case has become the request of the State Duma. The ground for consideration of the case has become the uncertainty in understanding of specified articles of the Constitution in connection with the concepts used in them "the general number of the deputies of the State Duma" and "the general number of the members of the Council of Federation and the deputies of the State Duma". Thereof it was required to explain, whether identically the general number of the deputies of the State Duma is identical to its numerical structure established by Article 95 ( Part 3 of the Constitution), or it means the number actually elected deputies, except for what powers at the moment of voting are terminated in the established order, and whether the instruction on the general number of the members of the Council of Federation and the deputies of the State Duma is the ground for decision-making on the basis of the sum of votes of the members of the both chambers of the Federal Assembly. Having considered the case, the Court has explained, that the regulation about the general number of the deputies of the State Duma, contained in the above mentioned articles of the Constitution of the Russian Federation, is necessary to understand as the number of the deputies established for the State Duma by Article 95 (Part 3) of the Constitution of the Russian Federation - 450 deputies. The regulation about the general number of the members of the Council of Federation and deputies of the State Duma should be understood as providing voting separately in chambers and determination of its results accordingly from the number of each chamber established by Article 95 (Parts 2 and 3) of the Constitution of the Russian Federation.

In the opinion of the Court, the purpose of the establishment in Article 95 of the Constitution of the number of mandates in the Council of Federation and the State Duma - maintenance of the representative character of the higher legislative organ of the Russian Federation.. It proceeds that adoption of the offered by the State Duma interpretation of the concept "the general number of the deputies" as the number of actually elected deputies in the State Duma except for those whose powers at the moment of voting have been terminated in the established order, can lead to that the State Duma will be competent to pass federal laws and other important for the country acts on questions of the conducting even if actually will lose the representative character owing to vacancy of the significant part of the deputy mandates.

The great value for establishment of the procedure of entry of amendments to chapters 3-8 of the Constitution has the Resolution of the Constitutional Court of the Russian Federation from October 31st, 1995 on the case about interpretation of article 136 of the Constitution of the Russian Federation at request of the State Duma. The ground for consideration of the case has become absence in the text of the Constitution of the name and the legal form of the document containing the amendments to the Constitution of the Russian Federation [6].

On the decision of Court from the established by the Constitution of the Russian Federation procedure of adoption of amendments to chapters 3-8 of the Constitution of the Russian Federation it follows, that amendments are adopted in the form of the special legal act - the law of the Russian Federation on amendments to the Constitution of the Russian Federation. The Regulation of Article 136 of the Constitution that amendments to the Constitution are adopted in the order stipulated for passing of the federal constitutional law, means distribution on the procedure of adoption of amendments of requirements of Article 108 (Part 2) of the Constitution about approval of the given act by the majority not less than three quarters of votes out of the total number of members of the Council of Federation and not less than two thirds of votes out of the total number of the deputies of the State Duma. Thus, the special condition for entry of amendments is valid, namely the necessity of their approval by the organs of the legislative power by not less than two thirds of the subjects of the Russian Federation. Besides there should be observed regulations of Article134 of the Constitution of the Russian Federation stipulating the number of the subjects, possessing by the right of entry of offers on amendments to the Constitution of the Russian Federation.

Thus, the Constitutional Court, having determined the name of the act, bringing the amendments in the Constitution, actually has not only carried out interpretation of the Constitution, but has also made the addition to it.

The Resolution of the Constitutional Court of the Russian Federation from April 22nd, 1996 on the case about interpretation of separate regulations of Article 107 of the Constitution of the Russian Federation has resolved the dispute between the President of the Russian Federation, the Council of Federation and the State Duma, connected with "different" understanding of the concept "the adopted federal law", the procedure of deviation of the federal law by the President, and with the repeated consideration of the federal law by the chambers of the Federal Assembly in the order "established by the Constitution of the Russian Federation" [7].

The court has come to the conclusion, that "the adopted federal law" in the sense of Article 107 of the Constitution should be understood:

The laws adopted by the State Duma and approved by the Council of Federation in accordance with Parts 1, 2, 3 and 4 Article 105 of the Constitution;

The laws repeatedly adopted by the State Duma in accordance with Part 5 Article 105 of the Constitution;

The laws approved by the State Duma and the Council of Federation in accordance with Part 3 Article 107 of the Constitution.

The adopted federal law within five days goes for signing and promulgation to the President of the Russian Federation by the Council of Federation irrespective whether the given law has been approved by the given chamber by voting or without consideration. In the case stipulated by Part 5 Article 105 of the Constitution, the adopted federal law is transmitted to the President of the Russian Federation by the State Duma.

The deviation of the federal law by the President of the Russian Federation means the adopted during fourteen days in no event after the moment of reception of the law the decision of the President of the Russian Federation on refusal in its signing (veto) with indication of the motives of such refusal. The deviation of the federal law in the sense of Part 3 Article 107 of the Constitution returning by the President of the federal law to the corresponding chamber of the Federal Assembly, possible only in case of infringement by the chamber of the requirements established by the Constitution to the order of adoption of federal laws and stipulated by it conditions and procedures.

The great role in differentiation of jurisdiction between the courts of the constitutional jurisdiction and the courts of common and arbitration jurisdiction belongs to the Resolution of the Constitutional Court of the Russian Federation from June 16th, 1998 on the case about interpretation of separate regulations of Articles 125, 126 and 127 of the Constitution of the Russian Federation [8]. The court has established the obligatory rule according to which the stipulated by Article 125 of the Constitution power under the sanction of an affair about conformity of the Constitution of the Russian Federation of the statutory acts issued on the questions, relating to conducting of the organs of the government of the Russian Federation and joint conducting organs of the government of the Russian Federation and organs of the government of its subjects, shall solely be the competence of the Constitutional Court of the Russian Federation. Courts of common jurisdiction and arbitration courts cannot recognize the listed in Article 125 (items "A" and "B" Parts 2 and 4) acts not corresponding to the Constitution of the Russian Federation and consequently lose validity.

The court of common jurisdiction or arbitration court, having come to the conclusion about discrepancy to the Constitution of the Russian Federation of the federal law or the law of the subject of Federation, shall have no right to apply it in the concrete case and shall be obliged to apply to the Constitutional Court of the Russian Federation with the request about verification of constitutionality of the given law.

Very important is the legal position of the Court that Article 76 of the Constitution regulating the principles of the sanction of collisions between statutory acts of various level, does not proceed the competence of the federal courts to recognize statutory acts of the subjects of Federation not corresponding to their constitutions (charters). The realization of the specified function attracting deprivation of statutory acts of the subjects of the Russian Federation of validity, in sense of Articles 5 (P.. 2), 73 and 118 of the Constitution of the Russian Federation, is possible only for the organs of the constitutional legal proceedings if their competence is stipulated by the constitutions (charters) of the subjects of the Russian Federation.

The resolution of the Constitutional Court of the Russian Federation from December 11th, 1998 on the case about interpretation of regulations of Part 4 Article 111 of the Constitution of the Russian Federation, considered at request of the State Duma, there has been stopped the dispute whether the President of the Russian Federation shall have the right to present repeatedly the nominee of the Chairman of the Government of the Russian Federation rejected by the State Duma and what legal consequences of the triple deviation of the State Duma of the same nominee to the specified post [9].

According to the rule established by the Constitutional Court the regulation of Part 4 Article 111 of the Constitution of the Russian Federation about the triple deviation of the submitted nominees of the Chairman of the Government of the Russian Federation by the State Duma in interrelation with other positions of the given article mean, that the President of the Russian Federation at entering into the State Duma the offers on nominees to the post of the Chairman of the Government shall have the right to represent the same candidate twice or three times or to represent each time a new candidate. The right of the President to offer this or that nominee and to insist on its approval, on the one hand, and the right of the State Duma to consider the submitted nominee and to decide the question on the consent to assignment, on the other, should be realized in view of the constitutional requirements about the coordinated functioning and interaction of the participants of this process, including on the basis of stipulated by the Constitution of the Russian Federation or not contradicting to it forms of interaction developing in the process of realization of powers of the head of the state in parliamentary practice.

After the triple deviation submitted by the President of the Russian Federation nominees of the Chairman of the Government of the Russian Federation - irrespective, whether each time there has been represented a new candidate or the same candidate has been represented twice or three times, - the State Duma shall be subjected to dissolution.

The resolution of the Constitutional Court of the Russian Federation from January 27th, 1999 on the case about interpretation of Articles 71 (item "d "), 76 (P. 1) and 112 (P. 1) of the Constitution of the Russian Federation there have considerably been expanded the constitutional norms concerning determination of the structure federal organs of the executive power [10]. The State Duma, having applied to the Constitutional Court with the request, asked to give interpretation on the concept "the system of federal organ of the executive power" and to explain which act should regulate this system - the federal law or the Order of the President of the Russian Federation.

In accordance with the decision of the Constitutional Court the system of federal organs of the executive power comprises the Government of the Russian Federation consisting of the Chairman of the Government of the Russian Federation, Deputies Chairman of the Government of the Russian Federation and federal ministers, as well as ministries and other federal organs of the executive power determined in accordance with the Constitution of the Russian Federation, Federal constitutional law "About the Government of the Russian Federation" and other federal laws. On the questions concerning the system of federal organs of the executtve power, not settled by the legislator, the President of the Russian Federation can issue Orders which should not contradict the Constitution of the Russian Federation and the federal laws.

The concept "the structures of federal organs of the executive power" includes the list of the concrete organs comprising the system of federal organs of the executive power and providing realization by the Government of the Russian Federation of the tasks and powers assigned to it. The structure of federal organs of the executive power is offered by the Chairman of the Government of the Russian Federation not later than a week in no event after his assignment and is affirmed by the Order of the President of the Russian Federation.

Changes and additions in the structure of federal organs of the executive power for the purpose of its reorganization can also be brought by the orders of the President of the Russian Federation which should not contradict the Constitution of the Russian Federation and the federal laws. Thus, such reorganization can be carried out only within the limits of assignments established by the federal law about the budget for the current year.

Article 92 of the Constitution of the Russian Federation provides the termination by the President of the Russian Federation of his execution of powers ahead of schedule in case of his resignation, proof inability on the state of health to realize belonging to him powers or dismissals from a post. Thus, the elections of the President of the Russian Federation should take place not later than three months in no event after the moment of the preschedule termination of execution of the powers. In all the cases when the President of the Russian Federation is not capable to carry out his duties, they are temporarily executed by the Chairman of the Government of the Russian Federation.

In such wording Article 92 of the Constitution it is not clear: whether the Constitution supposes time discharge of duties of the President by the Chairman of the Government only in the cases listed in the given article, or there is possible the wide interpretation of the legal norm. There arises the question whether the time execution by the Chairman of the Government of the Russian Federation of duties of the President of the Russian Federation, certainly, cause assignment of the new elections of the President of the Russian Federation or the renewal of execution of the powers by the President of the Russian Federation is possible.

In the given case the imperfection of the constitutional regulation is obvious. The Constitutional Court of the Russian Federation has corrected the developed situation after adoption at the request of the State Duma the resolution from July 6th, 1999 on the case about interpretation of regulations of Article 92 (P. 2 and 3) of the Constitutions of the Russian Federation [11].

In the opinion of the Court, the regulations stipulated by the Constitution about time execution by the Chairman of the Government of the Russian Federation of the duties of the President of the Russian Federation is distributed to cases of the preschedule termination of execution by the President of the powers listed in Article 92 of the Constitution, and also other exclusive cases when the President assigns the performance of the duties to the Chairman of the Government or when objectively is objectively excluded adoption by the President of the decision on time putting on of discharge duties of the President on the Chairman of the Government. The Chairman of the Government of the Russian Federation acts as the President of the Russian Federation accordingly till the moment of returning of the working President of the Russian Federation to execution of the duties or up to the assignment to a post on a newly elected President of the Russian Federation. At the preschedule termination of execution of the powers by the President of the Russian Federation on the grounds stipulated in Article 92 of the Constitution, elections of the new President of the Russian Federation should be carried out in accordance with the Constitution of the Russian Federation.

Besides the Constitutional Court of the Russian Federation with its resolution from November 11th, 1999 on the case about interpretation of Article 84 (b), 99 (P. 1, 2 and 4) and 109 (P. 1) of the Constitution of the Russian Federation has actually established the legal norm concerning the moment of the termination of the powers of the State Duma in case of its dissolution by the President of the Russian Federation [12]. In connection with this decision the dissolution of the State Duma by the President of the Russian Federation means the termination from the moment of assignment of date of new elections, realization by the State Duma of the powers on adoption of laws stipulated by the Constitution, and also its other constitutional powers realized by decision-making at the session of the chamber. Thus, realization of the specified powers of the State Duma by the President of the Russian Federation, the Council of Federation, and other organs of the government is excluded.

In all the above-mentioned cases the Constitutional Court of the Russian Federation, in our opinion, has considerably improved the Fundamental Law, has made its clearer, more logical, taking into account tendencies of the constitutional development and requirement of the norms of the international law.

At the same time, the Constitutional Court of the Russian Federation at realization of interpretation of norms of the fundamental laws should ground on the principle of self-restriction of the ambitions, recognizing the primacy of norms of the Constituent document and realizing the framework of interpretation.

In the opinion of S.V. Polenina, the Constitutional Court of the Russian Federation in a number of cases is beyond interpretation of norms of the Constitution, substituting the legislator [13]. It testifies to the ripened necessity of the legislative establishment of framework of interpretational activity of courts. Thus the major problem is to determine precisely, up to what limits interpretation of the constitutional norms can come. E.A. Lukyanova is convinced that at present there exists no guarantee that during the explanation the norm will not turn into the contrast, and will not become unrecognizable or will not change the sense [14].

In our opinion, the Constitutional Court of the Russian Federation should not consider the case about interpretation containing in P. 4 Article 66 of the Constitution of the Russian Federation of the regulation about joining the autonomous region, the structure of the territory, the region at request of the Tyumen regional Duma, the Duma Hunty-Mansi Autonomous District and the State Duma Yamal-Nenets autonomous district. The resolution on the given request was made on July 14th, 1997 [15]. The court has tried to reply the insoluble question on interaction of the regulations of the Constitution that in the mutual relations with the federal organs of the government all the subjects of the Russian Federation should be equal (P. 4 Article 5) and about joining autonomous districts in structure of the territory and region (P. 4 Article 66). Such regulation of the federative relations - is one of the failures of our Constitution. The contradiction between the two regulations of the Constitution is obvious.

This contradiction has been actually recognized by the Constitutional Court of the Russian Federation, but it has made another conclusion. In the opinion of the Court, joining of the autonomous district the structure of the territory, region means the presence at the territory, region of the organs of the government whose powers are distributed to the territory of autonomous districts in cases and limits, stipulated by the federal law, charters of the corresponding subjects of the Russian Federation and the contract between their organs of the government. Absence of the contract cannot serve an obstacle for distribution of jurisdiction of the organs of the government of the territory, region on autonomous district.

Joining of the subject of the Federation in structure of another is nonsense. Moreover the given resolution is the justification of the existing position and slows the process of joining of autonomous districts the structure of territory or districts appears as administrative unit.

We believe that the Resolution of the Constitutional Court of the Russian Federation from July 14th, 1997 is the only resolution on the case interpretation of the Constitution not causing indisputable approval. All others resolutions promoted perfection of the Constitution. In the course of time the quantity of the cases of this category, considered in courts, will be reduced. It is caused by the fact that in the constitutions there have remained a few regulations, capable to cause uncertainty in understanding. The statistics shows the same. If in 1998-1999 there have been considered two cases about interpretation of the Constitution of the Russian Federation a year, in 2000 - only one, and in 2002 - none of them.

The literature

resolution constitution russian

1. См.: Конституционное право / Отв. редактор В.В. Лазарев. - М.: Юристъ, 2009. - С. 59.

2. Арановский К.В. Государственное право зарубежных стран / К.В. Арановский. - М.: Форум-Инфра-М, 2009. - С. 124.

3. См.: Mc Calloch & Marilland, 17, US (4 Wheat), 316 (1819).

4. Фридмен Л. Введение в американское право / Л. Фридмен; Пер. с англ. Г. Седуна. - М.: Прогресс-Универс, 2002. - С. 192.

5. По делу о толковании статей 103 (ч. 3), 105 (ч. 2 и 5), 107 (ч. 3), 108 (ч. 2), 117 (ч. 3) и 135 (ч. 2) Конституции РФ: Постановление Конституционного Суда РФ от 12.04.1995 № 2-П // ВКС РФ. - 2005. - № 2-3.

6. По делу о толковании статьи 136 Конституции Российской Федерации: Постановление Конституционного Суда РФ от 31.10.1995 // Собр. законодательства РФ. - 2005. - № 45. - Ст. 4408.

7. По делу о толковании отдельных положений статьи 107 Конституции Российской Федерации: Постановление Конституционного Суда РФ от 22.04.1996 № 10-П // ВКС РФ. - 2006. - № 6.

8. По делу о толковании отдельных положений статей 125, 126 и 127 Конституции Российской Федерации: Постановление Конституционного Суда РФ от 16.06.1998 // Собр. законодательства РФ. - 2008. - № 25. - Ст. 3004.

9. По делу о толковании статей 71 (п. «г»), 76 (ч. 1) и 112 (ч. 1) Конституции Российской Федерации: Постановление Конституционного Суда РФ от 27.01.2009 № 2-П // ВКС РФ. - 2009. - № 3. - С. 5-11.

10. По делу о толковании положений статьи 92 (ч. 2 и 3) Конституции Российской Федерации: Постановление Конституционного Суда РФ от 06.07.2009 № 10-П // ВКС РФ. - 2009. - № 5. - С. 43-47.

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