About development of legal fundamentals of the constitutional justice in the subjects of the Russian Federation

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Abstract work

ABOUT DEVELOPMENT OF LEGAL FUNDAMENTALS OF THE CONSTITUTIONAL JUSTICE IN THE SUBJECTS OF THE RUSSIAN FEDERATION

The first steps promoting creation of the judicial organs of the constitutional control in the subjects of the Russian Federation, have become the Concept of the judicial reform in the Russian Federation, adopted by the Resolution of the Supreme Soviet of RSFSR from October 24th, 1991 [1] and the Federal contract about differentiation of subjects of conducting and powers between the federal organs of the government of the Russian Federation and the organs of power of the sovereign republics of the Russian Federation from March 31st, 1992. According to the Federal Contract the control over observance of the Fundamental Laws of the subject relates to the exclusive competence of the subject. Therefore the subjects of the Russian Federation had the right to establish independently organizational-legal forms of realization of this control before adoption of the corresponding federal act.

In 1991 the Constitutional Court was created in Dagestan, in 1992 - In Bashkortostan, Sakha (Yakutia) and Kabardin-Balkar Republic. After adoption of the Constitution of the Russian Federation in 1993 when there have been stipulated the principles of federalism, division of powers, the right of the subjects of the Russian Federation to have independent systems of the government and legislation, necessity of creation of legal mechanisms of protection of the Fundamental Laws of the subjects of the Federation - constitutions and charters - has become more evident. In a number of the subjects - not only in the republics - have appeared the judicial organs of the constitutional control.

The Constitution of the Russian Federation (Article 77) has given the subjects of the Federation the right to establish independently the system of the organs of the government, thus having specified, that it is necessary to carry out in accordance with the fundamentals of the constitutional system of the Russian Federation, established by the federal law. Concerning the courts of the subjects of the Russian Federation such principles are determined by the Federal constitutional law "About the judicial system of the Russian Federation", adopted in accordance with the Constitution ( Part 2 Article 118). The given Law which has come into force on January 1st, 1997, has put an end to the existing disputes: whether the subjects of the Russian Federation can or cannot create the constitutional (charter) courts. The uniform legal base for creation and activity of the organs of the constitutional control which were earlier created by the subjects of the Russian Federation independently, without legal grounds at the federal level has appeared.

The law has determined the place of the constitutional (charter) courts in judicial system of the Russian Federation and their major assignment. It is established (Article 4), that in the Russian Federation alongside with the federal courts including the Constitutional Court of the Russian Federation, courts of common jurisdiction, arbitration courts, there act the constitutional (charter) courts and justice of the peace of the subjects of the Russian Federation, making the judicial system of the Russian Federation.

The major purpose for creation of the constitutional (charter) courts is designated in Part 1 Article 27 of the Federal Constitutional Law "About the judicial system of the Russian Federation", establishing, that the constitutional (charter) court of the subject of the Russian Federation can be created for consideration of the questions of conformity of laws, statutory legal acts of the organs of the government, organs of local self management of the subject of the Russian Federation to the constitution (charter), and for interpretation of the constitution (charter) of the subject of the Russian Federation. This norm for a long time has caused the discussion: whether the constitutional (charter) court of the subject of the Russian Federation shall have the right to consider other questions in his competence given to him by the constitution (charter) of the subject of the Russian Federation, or his powers shall be limited by the tasks named by the Federal Constitutional Law.

Definition of the Constitutional Court of the Russian Federation from March 6th, 2003 on requests of the State Assembly of Republic of Bashkortostan and the State Council of Republic of Tatarstan about the verification of constitutionality of Part 1 Article 27 of the Federal Constitutional Law "About the judicial system of the Russian Federation" [2] has put an end to the continuous disputes on the competence of the constitutional (charter) courts of the subjects of the Russian Federation. The Constitutional Court of the Russian Federation has specified that:

- The cases related by the Constitution of the Russian Federation, federal constitutional and federal laws to the competence of the Constitutional Court of the Russian Federation, courts of general jurisdiction and arbitration courts, constitutional (charter) courts of the subjects of the Russian Federation as the courts comprising the judicial system of the Russian Federation, are not in their competence. Granting of powers outside of the specified limits does not contradict the Constitution of the Russian Federation if the given powers correspond to the legal nature and applicability of the given courts as the judicial organs of the constitutional (charter) control and concern the questions relating to conducting of the subjects of the Russian Federation by virtue of Article 73 of the Constitution of the Russian Federation;

- The list of the questions for consideration of which the subjects of the Russian Federation can create the constitutional (charter) courts, must not be counted exhaustive;

- Part 1 Article 27 of the Federal Constitutional Law "About the judicial system of the Russian Federation " does not interfere with the stipulation in the constitutions (charters) of the subjects of the Russian Federation of additional, in comparison with the established list, powers of the constitutional (charter) courts not interfering with the competence of the Constitutional Court of the Russian Federation, other federal courts and correspond to the competence of the subject of the Russian Federation;

- Thus, the Constitution of the Russian Federation and the Federal Constitutional Law "About the judicial system of the Russian Federation" and other federal laws does not proceed the requirement of establishing by the constitutions (charters) of the subjects of the Russian Federation of the uniform list of the powers of the constitutional (charter) courts of the subjects of the Russian Federation.

The developed in conditions of the Russian federalism system of organization of the power in the subjects of the Federation objectively dictates the necessity of formation of the regional constitutional justice. Its activity in combination with the federal Constitutional Court and within the framework of the uniform legal space, - should provide strengthening of the constitutional legality in the state, protection of the constitutional system of the Russian Federation and its subjects.

Unfortunately, still in the country insufficient attention is paid to the activity of the constitutional (charter) courts of the subjects of the Russian Federation though in the fifteen regions these structures already work, and in a number of them it has been working for 10 years already.

Realizing that the further development of the judicial constitutional control in Republic of Buryatiya and other subjects of the Russian Federation is possible only at perfection of the federal legal base on organization and activity of the constitutional (charter) courts of the subjects of the Russian Federation, the Judges of the Constitutional Court of Republic of Buryatiya and other subjects of the Russian Federation in their speeches at scientific-practical conferences held by the Constitutional Court of the Russian Federation, organs of legislative and executive power of the Russian Federation, in their scientific-journalistic articles have repeatedly spoken about the existing problems of formation and operating of the constitutional (charter) courts of the subjects of the Russian Federation, the organs of the constitutional justice have offered concrete bills on entry of changes and additions in the corresponding federal laws.

It is necessary to note, that many offers on perfection of the federal legislation on the constitutional and charter courts have been adopted by the federal organs of the executive and legislative powers. In the Federal Constitutional Law " About the judicial system of the Russian Federation ", the Federal Law " About organs of judicial community in the Russian Federation " and the Law of the Russian Federation "About the status of Judges in the Russian Federation" the regulation of the federal legislation on the constitutional and charter courts of the subjects of the Russian Federation have been in part updated in accordance with the offers.

The Federal Constitutional Law "About the judicial system of the Russian Federation" in the new wording provides, that the order of allocating with powers of chairmen, deputy chairmen, and other judges of the constitutional (charter) courts of the subjects of the Russian Federation shall be established by the federal laws and the laws of the subjects of the Russian Federation (Part 4 Article 13). Besides it stipulates common for all the courts order of selection of candidates realized on the competitive basis (Part 5 Article 13).

The significant additions were brought on December 15th, 2001 in the Law of the Russian Federation "About the status of judges in the Russian Federation".

For the first time the Law "About the status of judges in the Russian Federation" (Part 1 Article 4) specifies, that the judge of the arbitration court of the subject of the Russian Federation, of the constitutional (charter) court of the subject of the Russian Federation, of the regional court, of the garrison military court, and of the justice of peace can be the citizen who has achieved the age of 25 and having the experience of work by legal trade not less than five years. The law determine the organs and professions, activity in which at presence of the juridical education is included in the experience by legal trade for candidates to the post of a judge.

For the first time the Law (item 10 Article 6 ) specifies, that chairmen, deputy chairmen of the constitutional (charter) courts of the subjects of the Russian Federation shall be appointed to the post in the order determined by the laws of the corresponding subjects of the Russian Federation.

Item 4 Article 11 specifies, that the term of appointment of the judges of the constitutional (charter) courts of the subjects of the Russian Federation shall be established by laws and other statutory legal acts of the subjects of the Russian Federation. It also determines restrictions on occupation of the post of chairman, deputy chairman of the same court not more than two times successively (item 14 Article 6). Thus, common for all the judges are the regulations of items 5 and 6 Article 11 determining the effective date in the post of the judge and the time of termination of powers. So, for persons, for the first time elected to the post of a judge, the effective date in a post is determined in no event after taking the oath and for the person's already taken the oath, - in no event after assignment for the post. The concrete terms of termination of the powers of the judge depending on the grounds of termination are also determined.

Article16 of the Law " About the status of the judges in the Russian Federation " and Articles 447-450 of the Criminal Procedural Code of the Russian Federation establish inviolability of all judges and determine the order of decision of the questions on excitation of the criminal case concerning the judge, his attraction to the administrative responsibility, election concerning the judge as the preventive punishment of the detention and realization concerning the judge of operative - search actions. The law provides, that concerning the judge, and probably concerning the judge of the constitutional (charter) court, the given questions shall be decided by the judicial board comprising three judges accordingly of the Supreme Court of the republic, territory, regional court, city court of federal subordination, court of autonomous region, autonomous district on the petition of the General Prosecutor of the Russian Federation. And for excitation of the criminal case concerning the judge the consent of Qualified Board of Judges of the corresponding subject of the Russian Federation shall be necessary.

The Law (item 3 Article 21) stipulates the order of issue of the certificates to judges. Certificates of Judges of the constitutional (charter) courts of subjects of the Russian Federation shall be signed and issued in the order established by the law of the subject of the Russian Federation.

On March 14th, 2002 there was adopted the Federal Law "About the organs of judicial community in the Russian Federation" which provides that the judicial community in the Russian Federation shall comprise judges of the federal courts of all kinds and levels, judges of the courts of the subjects of the Russian Federation making the judicial system of the Russian Federation (Article 1). At formation of all the organs of the judicial community the representation from the constitutional (charter) courts of the subjects of the Russian Federation shall be provided.

On April 5th, 2005 there was adopted the Federal law No.33-FL "About entry of changes in the Law of the Russian Federation" About the status of judges in the Russian Federation", the Federal Law "About justice of the peace in the Russian Federation", the Federal Law About entry of changes in the Law of the Russian Federation "About the status of judges in the Russian Federation", and the Federal Law "About the organs of judicial community in the Russian Federation". These legislative acts entered the changes in particular the age limit of stayed in the post of the judge - 70 years of age is established. For the judges of the constitutional (charter) courts of the subjects of the Russian Federation the laws of the can establish another age limit of stay in the post of the judge in these courts.

The activity of the constitutional (charter) court in the subject of the Russian Federation is the realization of the principle of the division of powers in the state units of the Russian federative state. In the units in which the constitutional (charter) courts of the subjects of the Federation have been created and successfully function, they act within the framework of the uniform legal space, and realize the constitutional justice. In practice, the decisions of such courts about admission of the statutory act not corresponding to the constitution or charter is the ground for cancellation in the established order of the regulations of other acts based on the disputed act. Besides the regulations of such acts cannot be applied by courts, other organs and officials. The social importance of the constitutional (charter ) courts of the subjects of the Russian Federation as the organs of the constitutional control is, that the development of this activity is necessary not only to the judicial system, but to the whole society which has proclaimed the development of the lawful state.

Resolving legal disputes, the constitutional (charter) courts of the subjects of the Russian Federation realize the qualified interpretation of the regional constitutions and charters which have practically all been harmonized with the Constitution of Russia and federal legislation. Hundreds of laws and other statutory legal acts of the subjects of the Russian Federation have been admitted not corresponding to constitutions and charters of the subjects, and also the federal legislation and regulations of the Constitutional Court of Russia. It is enough to say, that only in the existing fifteen constitutional (charter) courts for the period from the beginning of their activity there have been considered more than 3000 petitions and requests.

Estimating on the whole the activity of the regional constitutional (charter) courts, it is necessary to agree that their decisions are appreciably the source of the law of the subject of the Federation, and influence the development of the principle of the division and interaction of the powers, institutes of the government and local self-management, provide conformity of the regional and federal legislation. They promote "penetration" of the legal positions of the Constitutional Court of the Russian Federation into the legal system of the regions.

Moreover, the constitutional justice for the short period of its existence has proved, that it can be the effective means of formation of legal mutual relations of the regional power and local self-management, additional mechanism on protection of rights and freedoms of a person and a citizen.

The initial stage of establishment in Republic of Buryatia of the organ of the constitutional control has become the adoption of the Constitution of Republic of Buryatia in February, 1994. It provides, that on the territory of Republic of Buryatia alongside with the federal courts, shall act the Constitutional Court of Republic of Buryatia which is the supreme organ of judicial power on protection of the constitutional system of Republic of Buryatia. In October, 1994 the deputies of the National Khural (Parliament) of Republic of Buryatia adopted the Law of Republic of Buryatia "About the Constitutional Court of Republic of Buryatia". Election in January, 1995 by the Parliament of the republic of the first Constitutional Court and taking the oath by the judges, has marked the start of the activity of the Constitutional Court of the Republic.

In one of his speeches in the National Khural of Republic of Buryatia, President of Republic of Buryatia L. Potapov has noted, that activity of the Constitutional Court of the republic is the fact testifying, first of all, that the republic firmly and consistently steps forward on the way of development of the lawful, democratic, civil society.

From the first days of the activity the Constitutional Court of Republic of Buryatia directed all the efforts of strengthening the constitutional legality, to recognition not only by the organs of the government and local self-management, but also by the citizens, their associations and officials, and to promotion on stability of the state system of republic, protection of the fundamental rights and freedoms of the citizens. The activity of the Court is aimed at the confirmation of the supremacy of the Constitution of Republic of Buryatia, its protection, maintenance of its supreme validity.

Eleven years have passed since formation of the Constitutional Court of Republic of Buryatia. For the given period the Court has considered 36 applications from the state organs. It is necessary to note, that any act admitted by the Court not corresponding to the Constitution, shall lose force, which means, that it has no validity and shall not be subjected to application. More than 100 applications in writing have been received by the Constitutional Court of Republic of Buryatia from the citizens and their associations. All this testifies to demand in republic of the organ of the constitutional justice.

On the results of consideration of the applications by the Constitutional Court of Republic of Buryatia there have been made 72 final decisions, including 30 resolutions and 42 definitions. One of the decisions has directly concerned the interpretation of the Constitution of Republic of Buryatia, and 31 decisions have been made on the complaints to infringement of constitutional rights and freedoms of the citizens and their associations that makes about 45 percent out of the total number of the decisions made by the Court. It is necessary to note, that the Constitutional Court is the unique organ allocated with the right to give official interpretation of the articles and separate regulations of the Constitution of Republic of Buryatia.

Consideration by the Constitutional Court of the republic of the cases on application of the citizens testifies on the fact that the citizens are given additional guarantees on protection of their constitutional rights and freedoms.

Intensity of activity of the Constitutional Court of Republic of Buryatia taking into account, that it does not consider cases on his own initiative, is comparable with activity of other constitutional (charter) courts of the subjects of the Russian Federation.

For example, the Constitutional Court of Republic of Dagestan for the period of 10 years has considered 32 cases, of Kabardin-Balkar Republic - 19, Komi Republic 60 cases, Republic of Bashkortostan - 27 cases, Republic Mary El - 22 cases. If to compare statistics (by the quantity of the cases considered) the constitutional courts in the subjects of the federative states, let's take Germany: The Constitutional Court of the district Baden - Vurtenberg - with the population of 10 million people has considered 33 cases for 5 years, district Bremen (population - 680 thousand peole) - 9 cases, District Hamburg (population 1,7 million people) - 22 cases, District Meklenburgh Pomerania (population 1,8 million people) - 57 cases, district Law Saxony (population 7,5 million people) - 24 cases, district Saar (population 1,08 million people) - 25 cases, district Saxony-Angalt (population 2,8 million people) - 53 cases.

The number of the constitutional (charter) courts in the Russian Federation though slowly, but grows. For the last years there have been created the charter courts of the Kaliningrad region, in the city of Saint Petersburg and the Constitutional Court of Republic of Tyva. All the courts act in accordance with the Constitution of the Russian Federation, Constitution, Charter, laws of the subjects of the Russian Federation and the federal legislation. With the creation of the constitutional (charter) court in the subject the process of formation of the system of organs of the government based on the principle of the division of the state power on legislative, executive and judicial, is completing thus the subject receives its statehood. The constitutional (charter) court, realizing in the form of the constitutional legal proceedings judicial power, protects constitutional system, fundamental rights and freedoms of a person and a citizen, strengthens the constitutional legality, but separate high officials of territories and regions do not always understand it and insufficiently seriously promote their creation.

We believe, that the detention of development of the constitutional (charter) justice in the subjects of the Russian Federation can be explained by the following principal reasons.

1. Novelty of the institute of the judicial constitutional control on the whole in Russia. While the constitutional courts in the separate countries of Europe have appeared even before the Second World War, the Constitutional Court of Russia has been created only in 1991.

2. Presence in Article 27 of the Federal Constitutional Laws No. 1 from December 31st, 1996 (in the wording of the Federal Constitutional Law from April 5th, 2005 No. 3- FCL) "About judicial system of the Russian Federation" [3] not obliging, and dispositive norm about the opportunity of creation of the constitutional (charter) court in the subject of the Federation.

3. Necessity of financial charges from the budget of the subject of the Federation on the maintenance of the given organ, that under force not to each state -territorial unit. Thus, proceeding from the reply of Vice-governor of Tumen Region of N.M. Dobrynin from May 22nd, 2001, creation of the Charter Court of Tumen Region has been suspended " in connection with absence of means of the regional budget on material support of activity of the Charter Court and maintenance of its Staff [4]. It is necessary to remind, that according to Part 2 Article 27 of the Federal Constitutional Law "About the judicial system of the Russian Federation" financing of the constitutional (charter) court of the subject of the Russian Federation is made on the account of the means of the budget of the corresponding subject of the Russian Federation.

4. Presence of local biases against expediency of creation of the given organs of the constitutional justice, and political disinterest of the subjects of the Federation to have the mechanism, capable to limit the certain actions of the organs of the executive and legislature power of the subject of the Federation. It once again confirms the necessity of entry in Article 27 of the Federal Constitutional Law "About the judicial system of the Russian Federation" of the obliging norm about creation of the constitutional (charter) courts in the subjects of the Russian Federation.

As to the working constitutional (charter) courts of the subjects of the Russian Federation it is necessary to remind, that they have begun to be created not so long ago - since 1991, therefore at present the given courts are still at the stage of development, facing a number of problems and difficulties in the sphere of the constitutional (charter) justice which demand the sanction at federal legislative level. In this connection the further improvement of the federal and regional legislative base of the constitutional (charter) justice of the subjects of the Russian Federation is necessary.

Besides there have been made attempts of abolition of already existing separate constitutional (charter) courts of the subjects of the Russian Federation.

Thus, after the arisen disagreements between the governor and the Charter Court of the city of Saint Petersburg governor Matvienko V.I. has applied to the President of the Russian Federation on expediency of the further functioning of the Charter Court and the opportunity of transfer of its functions and powers to courts of common jurisdiction. The President of the Russian Federation has given the explanation about absence of the lawful grounds for termination of the activity of the Charter Court of the subject of the federation comprising the uniform judicial system of the Russian Federation which is fixed by the Federal Constitutional Law "About the judicial system of the Russian Federation" and other federal laws.

At present in Russia have been changed general principles of organization of the legislative (representative) and executive organs of the government, subjects of the Russian Federation (deputies of the legislative organs of the subjects will be elected not only in one-mandatory, but also under party lists, the higher officials of the subjects will be appointed by the legislative organs on presentation of the President of the Russian Federation) besides up-date in Russia has begun reforming of local self-management. There have been adopted federal and regional legislative acts, but there exist many legal problems, and it is necessary to fulfill the great volume of work not only by the legislative and executive organs of the power, but also by the constitutional, charter courts.

The literature

constitutional control subject federation

1. Ведомости ВС РСФСР. - 1991. - № 44. - Ст. 1435.

2. Определение Конституционного Суда Российской Федерации от 6 марта 2013 г. № 103-О.

3. СЗ РФ. - 1997. - № 1. - Ст. 1. СЗ РФ. - 2005. - № 15. - Ст. 1274.

4. Архив Тюменской областной Думы. 2201.

5. Конституция Российской Федерации.

6. Конституция Республики Бурятия.

7. Федеральный закон «О судебной системе Российской Федерации.

8. Закон РФ «О статусе судей в РФ».

9. Федеральный закон «Об органах судейского сообщества в РФ».

10. УПК РФ.

11. Концепция судебной реформы в Российской Федерации.

12. Федеративный договор о разграничении предметов ведения и полномочий между федеральными органами государственной власти Российской Федерации и органами власти суверенных республик в составе Российской Федерации от 31 марта 1992 года.

13. Определение Конституционного Суда Российской Федерации от 6 марта 2013 г. № 103-О.

14. Закон РБ «О Конституционном Суде Республики Бурятия».

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