Legal infantility as the factor of negative influence on the level of sense of justice in Russia
History of infantilism. Formation of the civil society and development of the lawful state. About the new constitution of Serbia. Introduction of obligatory examination for all state and municipal officials of knowledge of Constitution of the Russia.
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LEGAL INFANTILITY AS THE FACTOR OF NEGATIVE INFLUENCE ON THE LEVEL OF SENSE OF JUSTICE IN RUSSIA
Formation of the civil society and development of the lawful state is impossible without participation of the citizens in this process, without precise legal installations, without active upholding their rights. However, at present instability of the situation in the society, arbitrariness of bureaucracy, social precipice between the rich and the poor result in various legal deviations. The major deviation among the Russian citizens is legal infantilism.
Legal infantilism is a special form of deformation of the sense of justice, expressed in absence of information of the population in legal questions, blanks in legal knowledge, and unwillingness to receive them.
M.E. Saltykov-Shchedrin ironically expressed his opinion that the Russian person himself does not know what he wants: whether young pork with a horse-radish, whether constitutions. There is a sensation, that since the times of the great writer nothing has changed. The citizens of Russia poorly imagine not only the structure of the supreme state organs, but are not informed on their rights and freedoms proclaimed by the Fundamental law of the state which is Constitution of the Russian Federation, and therefore are not informed about the ways of their protection and upholding.
M. Butorin has carried out selective inquiries, among various social groups of the population - city and rural - which have confirmed, that the society in its majority has the most vague representation about Constitution of the Russian Federation. According to him "They mostly perceive with the certain share of surprise, when you start to explain, that according to Article 3 the barrier of the sovereignty and the unique source of the power in the Russian Federation shall be its multinational nation" .
There exist a number of reasons of strongly expressed legal infantilism in Russia.
First, historical roots of infantilism.
Legal infantilism is an extremely Russian national feature. The mentality based on infantilism and laziness, originates in the past, in the epoch of the serfdom. Everything was solved by the master or the tsar. In 20th century under the Bolsheviks this infantilism has been aggravated, as any initiative was punished, appeared irresponsibility of collectivism, and desire and opportunity to profit on another's account. At present the person is put in such conditions when nothing depends on him. Realization of his rights completely depends on the official who either allows, or does not allow such realization.
Second, frequent discrepancy of the form of the law to its contents. The problem is, that separate legal norms are filled completely with another contents, favourable for the state. A vivid example is the opportunity of assignment of the governor of the subject by the President of Russia which does not correspond to the sense of Constitution of the Russian Federation. Amendments to the law "About general principles of organization of the legislative (representative) and executive organs of the state power of the subjects of the Russian Federation", concern the new order of assignment of governors, came into force on December 15, 2004. The given law has cancelled direct elections of governors by the population of the region and has entered the order of improvement of his nominee by the legislative assemblies of the subjects on presentation of the President of the Russian Federation.
The given regulations have been disputed in the Constitutional Court by fourteen representatives of the Union of the Right Forces, and by the Tyumen citizen Vladimir Grishkevich. But the Constitutional Court of the Russian Federation has confirmed constitutionality of the current order of assignment of Heads of the subjects of the Federation.
According to Resolution of the Constitutional Court of the Russian Federation, the powers of the President to bring a nominee of Head of the subject of the Federation on the improvement by the legislative organ of the given subject is not directly stipulated by Constitution of the Russian Federation, but the given circumstance does not interfere with that the federal legislator has assigned on the President of the Russian Federation as the Head of the state the certain functions on participation in allocation of head of the subject with certain powers. Such right of the President cannot be considered as infringement of the principle of division of the powers as the final decision should be made by the legislative organ of the subject of the Federation. The Resolution of the Constitutional Court specifies, that heads of the subjects of the Federation are parts in the uniform system of the state power and "are in relations of direct subordination with the President of the Russian Federation". The Constitutional Court has also terminated proceedings on the complaints of the citizens V. Grishkevich and other citizens concerning constitutionality of the regulations of the law about an opportunity of dismissal of head of the subject of the Russian Federation by the President and dissolution by the President of the Legislative Assembly of the subject .
Thus, according to special opinion of Judge A. Kononov "arguments of judges of the Constitutional Court cannot convince - at all their evidence that they do not completely correspond to reality. The Constitutional Court does not explain which is right and which is wrong". .
A. Kononov expresses the same opinion as the well-known German constitutionalist Otto Ljuhterhant according to whom illegality of the given law is so clear, that it is clear even to a common person .
In the given context of the problem it is necessary to suggest the state to introduce into common sense of justice of the population the opportunity of such discrepancy. Then no illusions and unjustified expectations would appear.
Third, absence in Russia of precise and transparent system of execution of laws. Undoubtedly, in Russia there exists no precise execution of laws, real introduction into life new legal norms, and the population does not understand the real sense of functioning of the legislative branch of power.
Adoption of the Federal Law No. 122 "About monetary privileges" has caused huge resonance in the society. Legal norms expressed in the given act, have been realized with completely another contents. According to the Chairman of the Committee of the State Duma on labour and social policy, A. Isaev, "the people's anger has been caused not by the monetary law itself but by its realization which "appeared loosing". According to A. Isaev the Cabinet of Ministers has started realization of the law having no schedules, no circuit of realization, and no necessary sublawful acts. It has led to the serious social intensity" .
Fourth, antagonism of the person and the state, complete discrepancy of their interests. It is necessary to note, that complete concurrence of interests of the state and the person, the same as complete concurrence of public and private interests is impossible. However, for interaction these two subjects of law should find the certain things in common.
According to P.A. Ol, "individual and social are different things, but they exist in unity and mutually determine and condition each other. The level of development of one of them is in direct dependence on the level of development of the other, hence, denying or belittling of the one means denying and belittling of the other" .
Responsibility for reduction of legal infantilism of the population depends on the state which for overcoming of the given deviation should solve 2 tasks:
1. Formation of trust of the citizens to the power.
2. The state should give the citizens an opportunity of reception qualitative legal knowledge. In 2004 ROMIR Monitoring carried out sociological inquiry on knowledge by the citizens of Constitution of the Russian Federation. As a result it was found out, that about 60%, i.e. the majority of the Russians, do not know, when the current Constitution of the country was adopted.
The wrong answer to the question about the date of adoption of Constitution of Russia was given by 24%, 16% of the citizens inquired answered correctly. In comparison with the data of the previous year the number of the citizens who answered correctly reduced to 5%, the number of the citizens who did not know the year of adoption of the current Constitution of the Russian Federation increased to 5%. The citizens who gave incorrect answer kept positions.
Besides the citizens were asked a question at what measure they know the current Constitution. Answers to it are the following: 35% "are familiar in general", 35% - "poorly familiar", 21% - do not know, 7% - well familiar, 2% - know completely. In total there have been interrogated 1, 600 Russians from the age of 18 .
It is possible to offer the following ways of decision of the given tasks:
1. Development of the general system and strategy of reforming of the state.
Presence of precisely formulated program of development of the state for the citizens to be clear what tasks the state puts for decision and definition of the goals of the state.
At present the authority informs only about the nearest reforms, but the state has no general strategy of reforming those results in separation of the given actions and misunderstanding of their essence among the population.
2. Detailed explanation to the population of the forthcoming reforms.
Before introduction into life of any innovations the authority should in detail inform the citizens about the forthcoming reforms to avoid unjustified expectations and undermining of trust of the citizens.
3. Perfection of quality of teaching of legal disciplines at schools, secondary educational establishments, higher educational establishments.
We believe that legal education of teens should contain eradication of legal infantilism.
According to Michael Butorin: "Not more than five percent of the interrogated have got acquainted Constitution. It means that teaching of fundamentals of legislation in educational establishments is poor. And it can explain the fact that the majority of school leavers is confident, that the Constitution guarantees them the right to labour. And very few are aware, that the given article has absolutely different contents, namely: that labour is free" .
Knowledge of law should be got from childhood, with the help of both family, and school education since it is the necessary component of the comprehensively advanced person. The fact is that even in ancient Rome, during development of republican and democratic power, elementary legal education, was a part of general education. At that time the way of life in ancient Rome required general knowledge of all and every one of elementary regulations of the law: the whole nation participated in political life, the whole nation discussed and decided legislative questions .
Certainly, both the family and school play a great role in the legal education of the person, in overcoming of such deformation as legal infantilism, but it is not "one-way traffic ". The state should actively participate in this process. Because when teens come into real life they face illegality.
4. Introduction of obligatory examination for all state and municipal officials of knowledge of Constitution of the Russian Federation and fundamental rights and freedoms of a person and a citizen.
First, all officials should know fundamentals of the legislation to require it from common citizens.
"It is not surprising that anyone does not know what Constitution in general is. We remember that the famous producer Stanislav Govorukhin in one of his interview to journalists for a long time could not recollect what the status of our country is and what name it bears. And he is a deputy, but not an ice-cream dealer" . infantilism lawful constitution
5. Propagation in mass media of legislative behaviour.
Increase of sense of justice directly depends on decrease of the level of legal infantilism of the citizens of Russia. At the given stage the state does not pay attention to the given problem. We think, that the state is not still interested in educated, competent and initiative citizens, knowing their rights and freedoms and capable to protect them.
About the new constitution of Serbia/
Only several months later when the state independence of Serbia was proclaimed, the National Skupshchina (the elective representative body of the government in Serbia) solemnly proclaimed the New Constitution on November 8, 2006, on St. Dmitry Day.
1. The previous Constitution of Serbia was proclaimed in 1903 (103 years ago), and lost force in 1918 (88 years ago) after creation of the first south Slavonic state - the Kingdom of Serbs, Croats and Slovenes. At that time the Kingdom of Serbia as the south Slavonic Piedmont, built the statehood in the basis of the first joint south Slavonic state, refusing from the state independence, internationally recognized at the Berlin Congress in 1878. For the period of 88 years Serbia existed in various, unfortunately, unsuccessful forms of statehood: first as the kingdom, then as the communist republic, and, at last, as the fragile state union with Montenegro, and finally desintegrated on May, 21, 2006, as a result of separation of Montenegro. Thus, Serbia "has been simply compelled" to proclaim the state independence.
Thus, it was unexpected and striking action of exclusive conclusion of agreements and consensus of all parliamentary parties concerning adoption of the new Constitution. The fact is that for six years there have continued failures and creation of obstacles for adoption of the new Constitution proceeded, and mainly within the framework of the democratic block.
Only in April, 2004 it was possible to come to the basic agreement of all parliamentary parties that it was time to start to adoption of the new Constitution, according to the procedure confirmed by the current Constitution. Then both the Government and the President of the Republic presented the projects of the Constitution to the National Skupshchina. Conceptually they appeared very much similar if not to take into consideration some facts, considerably apart from each other and concerning first of all the status of autonomous regions (i.e. - Voevodino) and to definition of Serbia as the state. And then in the work of the Committee on questions of the Constitution of the National Skupshchina there has come long-term stagnation, because of various kinds of obstructions and for other different reasons.
Because of the great program, ideological and political divergences between the leading parliamentary parties (from left to extremely right) it was necessary to adopt a number of important conciliatory decisions and concessions to receive the coordinated variant of the Constitution. And it has affected its quality, but the fact of adoption of the Constitution, objectively speaking, is a step forward - to Europe. We shall also note, that adoption of the new Constitution breaks continuity of the monarchist system as the traditional way of government in Serbia, in other words, it fixes the present republican way of government.
The consensus itself achieved in connection with adoption of the Constitution is the extremely important political event for Serbia. It testifies that is possible to achieve the general political consent on the question of the most important political and the state interest. And it is the essential precondition and guarantee of the democratic legality and efficiency of the new Constitution. And for elementary stability of the society and its basic institutions. Namely - the Constitution will not any more be the reason for incessant contest and mutual recriminations of political parties during its discussion as it is their joint political product. The achieved consensus of the parliamentary parties was at the same time the guarantee of success of the referendum as the parties for the first time amicably called to the same.
Besides adoption of the new Constitution corresponding to the European standards about human rights, rights and freedoms of minorities, is very important condition for the beginning of the movements of Serbia along the European way.
2. Analysis of the contents of the new Constitution shows, that it, first of all, abounds with more advanced decisions and additions to the contents in comparison with the existing constitutional decisions. They greatly relate to the human rights and the rights and freedoms of minorities for whom there have been given exhaustive definitions and guarantees according to the European convention. It, undoubtly, is the best part of the Constitution, and the sufficient reason that despite the number of weak moments, it could be appreciated positively.
Large innovation is the formal cancellation of public property. Some new important constitutional institutions and instances are involved, for example, Defender of citizens, High Council of Court, State Council of claimants, State Revising institutions, and the constitutional claim of citizens before the Constitutional Court. And, at last, the procedure of future changes of the Constitution becomes essentially simpler.
Repeated remarks on the project of the Constitution concerned, first of all, of the fact that there was no public discussion. For this reason there have been put the question about legality and legitimacy of its recognition. Undoubtedly, public discussion of the project of the Constitution in spite of the fact that it is not stipulated as the stage of the constitutional procedure, would be useful though actually in it a and rather narrow circle of politicians and experts instead of the citizens would participate in it. It is impossible, however, for the lack of the public discussion, that the Constitution is of poor-quality and that it is "the result of the secret contract". The two preliminary projects of the Constitution officially offered to the Skupshchina (the project of the Government and the President) have been publicly, at the political and professional level, discussed for two years, first of all, by electronic and other mass media. On the ground of the given two offers there has been made the uniform project of the Constitution - due to the necessary concessions and compromises among the parliamentary parties in the National Skupshchina as the constitutional body. For absolute legality and legitimacy of the given Constitution there exist two serious and indisputable grounds. First, the given project is confirmed at the full consent of all significant parliamentary parties, at the majority far exceeding necessary (in two thirds of votes). Second, for the first time during the history of constitutionalism of Serbia, the project of the Constitution has been adopted by the citizens at the referendum. The obligatory confirmation of the Constitution by the majority of voters (from their general number) showed at the referendum gives the main basis of legality of the new Constitution. Its legality is not subjected to doubt, as it is proclaimed by the subjects stipulated by the Constitution (the Скупщина and its citizens) according to the report determined by the Constitution.
On the other hand, some of the fundamental principles cause some critical remarks. First of all, this definition of Serbia as the state of Serbian people and all the citizens, residing in it (Article 1) it, even symbolically, makes us come to the conclusion, that the hierarchical political parity between the Serbian people and the citizens of other nationalities is thus established. Undoubtedly, the definition of Serbia as the state of all citizens, residing at the greater degree would correspond modern European standards. The same definition was in the former Constitution.
There is correspondence to the above-mentioned adopted definition and position of the Constitution that in Serbia service that the official language is the Serbian language and the official alphabet is the Cyrillic. It is necessary to add to it the regulation (from the former Constitution), that according to the law in the Latin alphabet can be used. And that simultaneously languages and alphabets of national minorities are used as official in the territories of Serbia where the given minority reside. However the criticism of the given positions is not so important if to take into account very wide and qualitative decisions and guarantees of individual and collective rights of national minorities in the part of the Constitution concerning the human rights, and rights and freedoms of minority. To the given understanding of the problem serve the principles stated in Article 1 of the Constitution, namely that Serbia is based on the priorities of the law and social justice, principles of civil democracy, human rights, rights and freedoms of minority, and adherence to the European principles and values.
The essential innovation in relation to the previous Constitution is the principle according to which the standard rules of the international law and the confirmed international contracts are a making part of the social order of Republic of Serbia, and the internationally confirmed contracts should correspond to the Constitution. As against the previous Constitutions in which the priority of the standard rules of the international law in the ratified international contracts above the domestic social order was confirmed, in the new Constitution they are hierarchically higher than the law, but lower than the Constitution. The given approach prevails and in the countries of the European community. And it shows respect of authority of the national constitutions, but it means that these constitutions correspond to the conventional legal standards.
3. It is no doubt that the most important positive step in the new Constitution is made on the rights and freedoms of the person and national minorities as their definitions and guarantees to them are formulated more fully and more particularly, than in the previous Constitution. Thus, for example, the death penalty is cancelled. The cloning of people, trade of people, sexual or economic use of people, slavery and forced labour is strictly forbidden.
Besides the Constitution defines that the person, deprived of freedom without legal proceeding, should be in the urgent order, not later than within 48 hours, to be transferred to appropriate judicial instance, otherwise he is to be released to freedom. This person has the right to fair legal proceeding in reasonable terms and has the right to interrogate witnesses of the prosecutor.
The constitution recognizes freedom of worship, opportunity of access to information in the property of state bodies, the right of citizens to apply to the international institutions for the sake of protection of the rights, etc.
In the sphere of economic system essential novelty has become the formal cancellation of public property. This condition guarantees private, cooperative and municipal property which can be the state ownership, the property of an autonomous region and the property of local administration. It, anyway, will provide the stronger economic basis of autonomy and to local self-management, and will also be an incitement for private business in them. One more important innovation is made in the regulation that the city land grounds for construction are the private property. The rest important principles of the economic system (market economy, interdiction on market monopoly, freedom of private business, independence of economic subjects, equality of all kinds of property, equality of foreign persons with the citizens of the country) are defined by standard formulations and, in fact, do not differ from the principles of the previous Constitution.
The social rights and economic system are defined superficially enough, with the help of the general standard formulations providing realization of various social policies, depending on ideology, that is political and program orientation of the majority allocated with the authority.
4. As to the state bodies, their duties, organization and mutual relations they are not essentially changed in relations of the previous Constitution so within the framework of the system of distribution of authority and the republican form of government there has been left the parliamentary-presidential system with some completions.
There has been entered the principle of equality and identical representation of sexes and national minorities in the system of the National Skupshchina. The immunity of the deputies has been expanded. Now the People's Deputy cannot be arrested, and no criminal case as well as any other case owing to which the verdict about imprisonment can be born if there is no sanction of the National Skupshchina. The given expansion of immunity, basically, is the disputed question, especially, if to take into consideration, that judges and public prosecutors have the narrower immunity, and it does not correspond to the fundamental principles of the Constitution concerning the division of powers to legislative, executive and judicial.
The novel is legalization of unconditional resignation, and actual introduction of the imperative mandate of deputies which the leaders of political parties will dispose. The given decision contradicts the fundamental constitutional principle about the sovereignty of the citizens realized by them at the referendum, on the national initiative and "through the freely elected representatives". It contradicts the working European democratic and legal standards and therefore it is cancelled in all the European states.
The constitution enters some useful innovations, such as overwhelming majority of all votes of the deputies when the decision about the certain quantity of the most important issues is made. Also there is stipulated dissolution of the National Skupshchina if within 90 days from the date of its formation the Government cannot be formed with the help of voting. At the same time the Government cannot offer dissolution of the National Skupshchina if the offer to vote mistrust to it has not arrived and if it has raised the question about trust to it. The dissolute Skupshchina solves only current issues and urgent issues except for cases of declaration of the martial law or state emergency law when its full constitutional powers are restored.
The constitutional status of the President of the Republic of Serbia though a little bit weakened in comparison with the previous Constitution, has remained within the framework of the parliamentary-presidential system. First of all, has been left the direct presidential elections as the way of expression of high degree of legitimacy and authoritativeness of the function. However, as against the previous Constitution, the new Constitution specifies, that the President at his infringement of the Constitution can be exempted of the post on the of the National Skupshchina by at least of one third of the deputies and he can be exempted on the post by the majority of votes (two thirds) in case the Constitutional Court finds out infringements of the Constitution on behalf of the President.
The function of the President is weakened in formal - legal sense when speaking about declaration of martial law and extreme situation. According to the previous Constitution the given acts should be made by the President of the Republic in case the Skupshchina had no opportunity to gather, and only after the government has stated the opinion, that is on the offer of the Government. According to the new Constitution, the act about declaration of the martial law or extreme situation and the act about restriction of the constitutional rights and freedoms beyond the framework of the Constitution (when the Skupshchina cannot hold session) adopt jointly with the threefold signature - of the President of the Republic, of the Chairman of the National Skupshchina and Chairman of the Government. The rest of the functions of the President have remained almost the same, as well as under the previous Constitution. With only one addition: He schedules the parliamentary elections and in case the law is returned to the Skupshchina to the repeated voting, the Skupshchina should vote for the law not only with the simple majority, but with the majority in relation to the total number of the deputies who support the position of the President.
According to the Constitution the Government has the former constitutional powers, and now the stronger role belongs to the Chairman of the Government. For example, the minister is responsible not only to the Skupshchina and the Government, but also to the Chairman of the Government to whom he can transmit the application on resignation. The Chairman of the Government can offer his clearing of the post. The new Constitution categorically asserts that the Chairman of the Government "conducts and directs the activity of the Government, makes efforts, that the Government should act politically homogeneously, coordinate the work of the members of the Government ". The position of the Chairman of the Government, that is the Governments, is significantly strengthen by the mentioned obligatory signatures of the Chairman of the Government on the act about martial law and extreme situation. The member of the Government in the future cannot be the deputy, that has been possible and that at the greater degree would correspond to the principle of division of powers. The status of the Government is strengthened that the offer to vote mistrust to the Government or the Minister can be made by 60 deputies at minimum (before - 20 deputies). If the decision on mistrust to the Government will not be adopted by the majority of votes, the voting procedure can be renewed only after 6-month term. The new Constitution also provides, that the Government should not allow to execution the general act of the district administration if it considers that this act does not correspond to the Constitution or the law, and in five days it should start the procedure of estimation of constitutionality or legality of the given act.
As to judicial power, the Constitution preserves the fundamental principles and guarantees of independence of court system, first of all, the continuity of function of the judge, and fixes some great innovations. It, first of all, concerns the High council of court system "as the independent organ guaranteeing independence of courts and judges ". To tell the truth, the given body has existed under the name of High Council of Justice, not as constitutional, but as the lawful institution. In the High council of court system, the majority will be made by judges. Though, basically, undoubtedly, all members of the High council will be elected by the National Skupshchina, and the law should provide, that its judicial structure should be proposed by courts and judges, instead of the committee of Skupshchina, that is the political body.
Basically the positive decision is, that the person who is appointed the judge for the first time, is elected for the three-year term. The choice of the candidate is made by the Skupshchina on the offer of the High Council of court. And on expire of the three year term the judge is elected by the High council of court constantly.
The unreasonable decision is the chairmen of courts are elected by the Skupshchina instead of High council of or by judges, as it confirms the fact that chairmen of courts are subordinated to the political interests.
Conditions for the termination or clearing of office of the judge are confirmed by the law instead of the Constitution as it has been till now. And it is also not reasonable. It is not good that the Constitution does not determine the powers of the Supreme Cassation Court and its Chairman can be elected only every five years (as well as other chairmen) while, for example, the republican civil claimant can be repeatedly elected for six years, at unlimited quantity of mandates. The novelty is the interdiction on political activity of judges. It is, basically, correct decision if only it will be formulated by the law as the interdiction to participation in activities of political parties.
Major changes in the Constitution are stipulated concerning the status of the Prosecutor's Office. It is in essence withdrawn from legal system and is the component of the executive authority that is made in a number of European countries.
It means, that the High Prosecutor of the republic and all other prosecutors will be elected and dismiss of the posts by the people of the National Skupshchina, under the offer of the Government. Another important innovation contradicts the present system. The question is the cancellation of the working till now continuity of term of office of the prosecutor that is about introduction of the 6-year mandate, with the opportunity of the repeated selection. It directly strengthens influence of political that is executive power, on the Prosecutor's activity. Simultaneously, contrary to hitherto existing lawful decision, prosecutor's deputy after three-year "activity", are appointed to constant office by the State council of prosecutors.
5. The constitutional court of Serbia has preserved the former powers. However it has received some new, but significant powers. First of all, it will estimate conformity of the law and other general acts to the conventional rules of international law and to the confirmed international contracts, and also conformity of the given contracts to the Constitution.
The major innovation is introduction of the preliminary estimation of constitutionality of the law authorized by voting, but not come into force. Such estimation is made on the offer of at least one third of deputies. The lack of the given decision is that the same right is not given to the President of the Republic. There also exists the great risk of contest by the opposition parties of any law in the Constitutional Court for the purpose of failure of activity of the legislative body of the power. We shall note that some constitutions in the world simultaneously provide both the preliminary estimation of the law and estimation of its constitutionality after passing.
The new Constitution enters the constitutional claim which has been long discussed and which can be made by any citizen on separate acts or actions of the state bodies and organizations having public powers by which there are infringed or restricted human rights or rights and freedoms of minorities guaranteed by the Constitution on condition that there have been exhausted or are not stipulated other legal means for their protection. Introduction of the given important means of the constitutionally-judicial protection of the citizens is the correct decision, but it will become the problem for the Constitutional court. Namely - the Constitutional Court should be effective in the decision of the constitutional claims and there will be a great number of them as the citizens will perceive the Constitutional Court as the cassation court in relation to other courts. The law and the rules of the Constitutional Court should more precisely order procedures and develop the criteria for recognition of the constitutional claim.
The novelty in the Constitution is introduction of such power of the Constitutional Court as the right to decide whether the President of the Republic has violated or not violated the Constitution.
The future Constitutional Court will comprise of 15 judges (instead of 9), elected, that is assigned for the 9 year term and they can be selected and affirm no more than two times.
The cancellation of the former principle of continuity of office of judges of the Constitutional Court can be, basically, a disputed question as it is necessary to make the conclusion that such decision is caused by the political reasons, that is the intention of the political authority to provide with repeated elections the certain control over the activities of this extremely important court both in legal, and political sense. On the other hand, it's good that the Constitution provides conditions for selection of judges of the Constitutional court. According to the new conditions, such judge should be the outstanding jurist at the age of 40 years old and having the 15-years experience of activities in the sphere of jurisprudence. The selection of judges is made on new and complex procedure. Namely - one third, that is 5 judges, are appointed by the Skupshchina out of 10 candidates offered by the President of Republic. The second third is appointed by the President out of 10 candidates offered by the Skupshchina and the third is appointed by the Supreme cassation court out of 10 candidates offered by High council of court and the State council of prosecutors at joint session. Such system of selection restores balance of all the three branches of the power. The useful novelty on the background of positions of the previous Constitution is that judges of the Constitutional court can be appointed professors of a faculty of law, and chairman can be selected by judges for the three-year term. But selection of the two thirds of judges of the Constitutional Court at great degree will influence both political criteria, and arrangement of forces of the two political bodies - the Skupshchina and the President of the Republic.
6. The constitutional status of autonomous regions and districts, in essence, remains the same as it has been. The constitution, thus, detains dissymmetric system of territorial autonomy. Thus, about Kosovo, owing to the unresolved status of the region, is spoken, that its "essential autonomy" will be regulated by the special law which affirms the constitutional act. It is obvious, that introduction of concept "the essential autonomy" proceeds from political documents on the future status of Kosovo, adopted by the National Skupshchina as a basis for negotiations with the international community. This formulation proceeds from the constitutional preamble that the region Kosovo and Metokhia is a making part of the territory of Serbia, and has the essential autonomy within the framework of the sovereign state of Serbia". Though it is not absolutely usual decision, the given part of the preamble has its purpose to fix additionally and constitutionally the status of Kosovo as the part of Serbia and to strengthen legitimacy and authority of our delegation on negotiations. Certainly, to draw in this way attention of the international community to the necessity of respect of the international law which fundamental principle is the invariance of borders of the sovereign states, that is their territorial integrity and respect of their state sovereignty.
The constitution for the first time provides an opportunity of formation of new autonomous regions and the cancellation or unification of the existing autonomous regions according to the constitutional procedure meaning the obligatory referendum of the citizens. The innovation is also the regulations about the financial autonomy, about property and incomes of the region. Thus, the budget of autonomous region Voevodino should make at least 7% of the total budget of the republic. And 3% out of the given 7% should be used for financing capital charges. None of the requirements concerning essential expansion of powers of the autonomy which would have characteristics of the state functions, such as judicial and legislative are not taken into consideration. However the given infringements of the powers of the autonomy to the certain degree are compensated by its wider financial functions.
Local administrations have basically preserved the former constitutional status, thus, district administration can now independently dispose district property. It is provided, that the referendum should precede establishment, cancellation and change of unit of local government. According to the former Constitution chairman of the regional administration heading executive authority, is elected directly by the citizens, and they can remove him from the post. The new Constitution provides that the decision about election to the agencies of the executive power of the district according to the law and the statute accepts regional committee.
7. And, at last, one more serious constitutional novelty - the order of entry of changes into Constitution. Changes will be made by the majority of People's Deputies (two thirds out of the total number!). And now the referendum is cancelled (which has been obligatory till present) and presence of the majority out of the total number of voters for adoption of the constitutional changes. Instead there has been stipulated the opportunity of removal by the Skupshchina of the decision that the act of changes in the Constitution should be confirmed by the citizens of republic by the republican. The exception can become cases when changes in the Constitution concern to its preamble, to the constitutional principles, human rights, rights and freedoms of minorities, state system, declaration of martial law and extreme situations, infringement of human rights, rights and freedom of minorities during martial law and extreme situations, and to the procedure of entry of changes into the Constitution. In these cases the referendum is obligatory, but thus it loses its former very high and uneasily achieved qualification.
In future the referendum will be considered taken place, and changes in the Constitution will be passed on the majority of votes given by the voters who have come to the elections. Thus, the referendum will be the simple procedure of additional democratic legalization of changes in the Constitution, and the Constitution will practically be changed by deputies (by the majority of two thirds of votes). The certain changes the next years will be necessarily brought in the Constitution - during rapprochement with the European Community and full harmonization of the domestic and European law and especially after the European Constitution is adopted.
After re-establishing its independence, Serbia now has a new Constitution, with which it will walk more quickly towards Europe. Since the Constitution resulted from the consensus of all parliamentary political parties, between which there are significant strategic, ideological and political differences, this implied the need for compromise which reduced the quality of the Constitution, but despite its weaknesses it is a constitution of a democratic society.
The Constitution has put an end to socially owned property; it introduced new institutions and new legal institutes such as the Ombudsman, High Judiciary Council, the National Prosecution Council, the State Audit Institution, constitutional claims, etc; it has enhanced the system of human and minority rights (which has become an integral part of the Constitution); it sets out clearly the relation between international and national law, it introduces several types of property, with the dominance of private property; the city construction land in private property now has a market character, and the economy is based on market economy and free entrepreneurship; it maintains the republican system with parliamentary representative system, with certain additions and amendments compared to the previous one; it sets out that the Supreme Court and the Supreme Court of Appeal is the supreme judicial institution in the country but docs not set out its competences; the function of the public prosecution is within the executive power, the competences of the Constitutional Court are increased and the number of its judges in increased, and it sets out a three-pole election mechanism; the position of the Autonomous province of Vojvodina is practically unchanged, and it leaves the possibility for new autonomous provinces to be established; it allows for the Autonomous Province of Kosovo and Metohia to have a position of "substantive autonomy; it has retained unchanged the position of local self-government units and has simplified the procedure for the constitutional amendments.
1. Буторин М. Когда народ не знает Конституции?
2. Федеральному закону о монетизации льгот исполняется год.
3. Оль П.А. Обоснование идеи публичного интереса в западной и отечественной политико-правовой мысли: некоторые аспекты правопонимания // Материалы V международной научно-теоретической конференции «Публичное, корпоративное, личное право: проблемы конфликтности и перспективы консенсуальности». - СПб., 2005. - С. 147.
4. Буторин М. Когда народ не знает Конституции?
5. Покровский И.А. История Римского Права. Издание 3-е, исправленное и дополненное. - Петроград: издание Юридического книжного склада «Право», 2007.
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