Constitutional system of the Russian Federation and role of the constitutional court in its protection
The Constitutional Court about political parties and religious organizations as institutes of the civil society. The party political component of the constitutional system as the subject of the constitutional control. Creation of regional parties.
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Constitutional system of the Russian Federation and role of the constitutional court in its protection
The constitutional fundamental of institutionalism of the civil society are the regulations of Article 30 of the Constitution of the Russian Federation stipulating the right of each person to association, including the right to create trade unions for protection of the interests guaranteeing freedom of activity of public associations and forbidding compulsion to join any association or stay in it. Existing in the general system of the constitutional regulation of social life, the given regulations are in indissoluble unity with such principles of the fundamentals of the constitutional system of the Russian Federation, as ideological and political variety, multi-party system (Part 1 and Part 3 Article 13 of the Constitution of the Russian Federation), equality of public associations under the law (Part 4 Article 13), secular character of the state, including inadmissibility of establishment of any religion as state or obligatory, and division religious associations from the state (Article 14).
In their complicated structural normative potential they, on the one hand, are the precondition for creative public activity of the citizens through participation in collective forms of upholding of the civic stand and common civic interest, and on the other hand, they cause the requirement inverted to public authority of creation of appropriate organizational - legal mechanisms of party and political and religious self-expression.
Allocation of these social formations - political parties and religious associations - as special objects of constitutionally legal maintenance and, accordingly, constitutional control is not casual. In fact according to historical experience and modern practice they have become the most intensive channels of civil initiative of the person: religious formations - through participation in traditional spiritual values of people, party and political - through participation in common ideology and political practice. It is also caused by the circumstance, that, being institutes of the civil society, political parties and religious associations are simultaneously organizationally legal forms of collective realization of the fundamental rights and freedoms of a person and a citizen - the right to participation in administrative office of the state, right to elect and be elected to the organs of the state power and local self-management, the right to freedom of worship, that, accordingly, assumes also the variety, the known degree of distinction of the values expressed in them. In particular, as against religious associations the integral attribute characterizing the role of political parties as the institute of the constitutional system is their program and political activity carried out by means of development and realization of the constitutional goals, directed to preservation or transformation of the fundamentals of the constitutional system of the state by the constitutional means and methods . Thus, development of party and political goals, objecting not only in directly parliamentary fractional, and in extra parliamentary activity, is expression of individual interests of social collectives.
The special importance of the above mentioned institutes of the civil society, contained in the essence of their social applicability, assumes both the special mode of their activity, and the increased responsibility under the society. It is expressed, in particular, in the constitutional regulations about forbiddance of creations and activity of public associations, whose goals and actions are directed to violent change of the fundamentals of the constitutional system and violation of integrity of the Russian Federation, undermining of safety of the state, creation of armed units, kindling of social, racial, national and religious break (Part 5 Article 13), and in common normative instructions Article 4 (Part 3), 17 (Part 3), 19 (Part 2), 29 (Part 2) and in others of the Constitution of the Russian Federation.
The above mentioned approaches have received substantiation in the activity of the Constitutional Court of the Russian Federation.
Questions of religious institutionalism of the civil society are the constitutional value.
One of the first cases, in which the supreme body of the constitutional control of Russia has mentioned the questions of structurization of the civil society, has been connected with the complaint of the religious associations «The Christian Church of Glorification» and Religious society of Iegova Witnesses .
The religious associations who applied to the Constitutional Court of the Russian Federation stipulated the regulations of item 3 Article 27 of the Federal Law «Аbout freedom of worship and about religious associations» according to which religious organizations having no documents to confirm their existence on the corresponding territory during not less than fifteen years shall enjoy the rights of the legal person under the condition of their annual re-registration before the specified fifteen-year term.
The court, resolving the given case, has determined the limits of legislative intervention into activity of religious associations, having specified the following. According to Article 28 of the Constitution of the Russian Federation in interrelation with its Article 13 (Part 4), 14, 19 (Parts 1 and 2) and 30 (Part 1) freedom of worship assumes freedom of creation of religious associations and freedom of their activity on the basis of the principle of legal equality by virtue of which the federal legislator, realizing the powers proceeding from Article 71 (item «c» and «o») and 76 of the Constitutions of the Russian Federation shall have the right to settle civil and legal status of religious associations, including the conditions of recognition of the religious association as the legal person, the order of its foundation, creation, state registration shall have the right to determine the maintenance of legality of religious associations.
Thus, the legislator, taking into account historically developed in Russia multi - religious way of life shall be obliged to observe the regulation of Article 17 (Part 1) of the Constitutions of the Russian Federation stipulating that in the Russian Federation there shall be guaranteed rights and freedoms of a person and a citizen according to the conventional principles and norms of international law and according to the Constitution of the Russian Federation. The measures entered by him concerning foundation, creation and registration of religious organizations, shall not deform the essence of freedom of worship, the right to association and freedom of activity of public associations, and the probable restrictions infringing these or that constitutional laws, shall be justified and proportional to the constitutionally valid goals.
In the democratic society with inherent to it religious pluralism according to Article 17 (Part 3) and 55 (Part 3) of the Constitution of the Russian Federation and corresponding regulations of Article 18 (items 2 and 3) of the International Pact on Civil and Political Rights, and Article 9 (item 2) of the Convention on protection of human rights and fundamental freedoms, similar restrictions can be stipulated by the law if it is necessary for the interests of public calmness, protection of social order, health care and morality or for protection of rights and freedoms of other persons. The state shall have the right to provide certain barriers not to give automatically the status to the religious organization, not to suppose legalization of the sects breaking human rights and committing illegal and criminal actions, and to prevent missionary activity (including in connection with the problem of proselytism) if it is incompatible with respect to freedom of thought, worship and religion of others and to other constitutional rights and freedoms, and is accompanied with the offer of material or social benefits for the purpose of recruitment of new members to church, wrongful influence on people, in need or in distress, psychological pressure or threat of violence, etc. It is, in particular, specified in Resolution of the European Parliament from February 12, 1996 «About sects in Europe» and in the recommendation of the Council of Europe No. 1178 (1992) «About sects and new religious movements», and in resolutions of the European Court on human rights from May 25, 1993 (Series A No.260-A) and from September 26, 1996 (Reports of Judgments and Decisions, 1996-IV), explaining the character and scale of obligations of the state proceeding from Article 9 of the above mentioned Convention.
Grounding on the principle regulations and having applied the system approach to analysis of legislative regulations, the Constitutional Court has come to the conclusion that the disputed regulations cannot be recognized unconstitutional and breaking rights and freedoms of the citizens as in the constitutionally legal sense they mean that the corresponding religious organizations enjoy rights of the legal person in full, without confirmation of fifteen-year minimal term of existence on the corresponding territory, without annual re-registration and without restrictions stipulated by Paragraph 4 item 4 Article 27 of the above mentioned Federal Law.
The problems of creation and activity of the religious organizations have also been considered by the Constitutional Court of the Russian Federation in the case on the complaint of the group of the citizens on infringement of their constitutional rights item 1 Article 9 and item 5 Article 9 11 of the Federal Law «About a freedom of worship and about religious associations» .
Having analysed the regulations of the given Federal law, the Constitutional Court has specified, that confirmation of fifteen-year term of existence of the religious group, founding the local religious organization, in the sense of item 1 Article 9, item 5 and 7 Article 11 of the given Federal Law in interrelation with its Articles 6, 7 and 8 is necessary, if only foundation and registration of the local religious organization takes place after coming into force of the above mentioned Federal Law and if there has not been confirmed its religious belonging to any centralized religious organization registered in the Russian Federation. Thus, the Law does not establish the form and procedure of proving the fact of fifteen-year term of existence of the religious group.
According item 2 Article 12 of the Federal Law «About freedom of worship and about religious associations» refusal of recording organ in the state registration of the religious organization in case of disagreement of its founders will be appealed in court. Applicants, who have not agreed with the decision of Department of the Ministry of Justice of the Russian Federation in the Udmurt Republic, have applied for protection of their rights not to court of general jurisdiction which, in the sense of Article 126 of the Constitution of the Russian Federation and the current legislation based on it, is allocated with the competence to resolve such cases, but directly tо the Constitutional Court of the Russian Federation.
Meanwhile to resolve the dispute and to finalize rights and duties of the sides shall have the right solely the court and the judge whose jurisdiction such case is related to by the law (Part 1 Article 47 of the Constitution of the Russian Federation) and realize judicial power on the basis of the principle of independence and submission only to the Constitution of the Russian Federation and the Federal Law (Part 1 Article 120 of the Constitution of the Russian Federation). Therefore if the founders of the religious organization disagree with the refusal of the recording organ, the corresponding dispute should be resolved by the court of general jurisdiction.
Pending adjudication the refusal of the recording organ gets the preliminary character and therefore the conclusion about necessity of application of the norm on which the refusal has been based, and its interpretation by the recording organ cannot be of prenodicial value. The sanction of the question whether this or that norm is subjected to application, its casual interpretation (referring to the concrete case), is, in the sense of Article 118, 120 (Part 2), 125 (Part 4), 126 and 128 (Part 3) of the Constitution of the Russian Federation, the prerogative of court of the general jurisdiction which in this question is not connected with the opinion of applicants, and lawful decision of the recording organ of the executive power.
Hence, admission by the Constitutional Court of the Russian Federation for consideration of the given complaint of the citizens - founders of the religious organization «Scientelogical church of the city of Izhevsk» without judgment establishing the fact of application of the norm about fifteen-year term on the ground of which they have been refused in registration of this religious organization would mean, that the Constitutional Court of the Russian Federation realizing the constitutional legal proceedings (Article 125 of the Constitution of the Russian Federation) and resolving the question on constitutionality of legal norms, at the same time would also resolve another question, namely: whether the disputed norms are subjected to application in the concrete case and would realize the belonging to court of the general jurisdiction authority to resolve cases by criminal, civil and administrative legal proceedings (Article 126 of the Constitution of the Russian Federation). Such intervention in prerogatives of the court of general jurisdiction on the sanction of the concrete case and at the choice of the norm subjected to application, in the sense of specified articles of the Constitution of the Russian Federation, and Articles 43, 96 and 97of the Laws «About the Constitutional Court of the Russian Federation» shall be inadmissible.
Recently the sphere of estimation of the constitutional justice is more and more actively intervented with party political institutionalization of the constitutional system. First of all it is connected with the development of parties and party relations which has received the formal - legal stipulation in the Federal Law «About political parties».
One of the major theses of the Constitutional Court of the Russian Federation in the given sphere - not formulated directly, but proceeding from the analysis of the adopted decisions - is the principle of the balanced formation of the system of institutes of the civil society that assumes such normative maintenance of organization and activity of each institute at which it would realize the public applicability and social functions, not interfering with realization of the corresponding functions by other institutes. In particular, party forms of the civil activity should not substitute national and religious self-organizing of the population, and vice versa.
According to item 3 Article 9 of the Federal Law from July 11, 2001 No. 95-FL «About political parties» there shall not be admitted creation of political parties on the basis of professional, racial, national or religious belonging; attributes of professional, racial, national or religious belonging in the given Federal law are understood as instruction in the charter and the program of the political party of the goals of protection of professional, racial, national or religious interests, and reflection of the specified goals in the name of the political party.
After coming into force of the Federal law «About political parties» the congress of the all-Russian public political organization «The Orthodox party of Russia» has adopted the decision about transformation to political party «The Orthodox party of Russia». The citizen N.E. Ilyukhina - a member of the given organization, believing, that the decision of the congress regarding preservation of the name «the Orthodox party of Russia» contradicts the instructions of item 3 Article 9 of the above mentioned Federal laws and therefore interferes with the registration of the given organization as the political party, has applied to the Koptev District court of the city of Moscow with the complaint in which she applied to cancel the specified decision. Having come to the conclusion that in the question about conformity of the regulations of item 3 Article 9 of the Federal Law» About political parties «of the Constitution of the Russian Federation there exists uncertainty the Koptev District court of the city of Moscow with the Definition from July 11, 2002 has stayed legal proceedings of the case and has petitioned the Constitutional Court of the Russian Federation with the request about the verification of their constitutionality. Simultaneously the Constitutional Court of the Russian Federation has been petitioned by the all-Russian public political organization «The Orthodox Party of Russia» with the complaint on the infringement by the same statutes of the constitutional right of the citizens to association.
For the sanction of the given case the Constitutional Court needed to determine originally constitutionally-legal parameters of the party and the religious association, their specific features, their place and role in the institutional system of the civil society. It is obvious, that the sanction of the given question with necessity assumes revealing of the sociopolitical contents of the specified institutes, which, however, shall not and cannot result in replacement of constitutionally-legal dispute by political expediency and validity of the legal essence.
The Constitutional Court has specified the following. Political parties as the necessary institute of the representative democracy providing participation of the citizens in the political life of the society, political interaction of the civil society and the state, in the open legal struggle on the basis of the principles of equality and political pluralism aspire to influence decidingly the government, participate in formation of authorities and in the control over their activity. As against other associations working on the political arena (trade and enterprise unions, so-called pressure groups, etc.), parties pursuing their own political goals, openly struggle for seats in the parliament and in the government, giving the opportunity to realize government in the state, and through it - government in the society. Consolidating political interests of the citizens, they promote formation of the political will of people. In the competitive struggle of the parties for political authority there is created such necessary democratic environment which allows the multinational Russian people as the barrier of sovereignty and the unique source of power in the Russian Federation to choose conscienchesly optimum directions of development of the society and the state and to achieve the civil consent.
As against political parties religious associations according to Article 28 and 30 of the Constitution of the Russian Federation, are created for the purpose of realization of freedom of belief, right of each person to unite with other person for confession of the certain religion that also assumes the opportunity of performing in accordance with the belief of religious ceremonies, spread of their religious beliefs, religious training and education, charity, missionary, selfless and other activity determined by the corresponding dogma. The constitutionally-legal basis for creation and activity of religious associations along with Article 13 of the Constitution of the Russian Federation stipulating ideological and organizational pluralism, serves Article 14, according to which the Russian Federation shall be the secular state; no religion can be established as state or obligatory ; religious associations are separated from the state and are equal under the law.
By virtue of Article 14 of the Constitution of the Russian Federation in interrelation with its Articles 11, 12 and 13 and according to concretizing their regulations Article 4 of the Federal Laws «About freedom of worship and about religious associations» the constitutional principle of the secular state and division of religious associations from the state shall mean, that the state, its organs and officials, and organs and officials of local self-management, i.e. organs of public (political) authority, shall have no right to interfere legal activity of religious associations, to assign on them performance of functions of the organs of the government and organs of local self-management; Religious associations, in turn, shall have no right to interfere affairs of the state, to participate in formation and carry out functions of organs of the government and the organs of local self-management, to participate in activity of political parties and political movements, to render them material and other help, and also to participate in elections, including by propaganda and public support of these or that political parties or separate candidates. It does not interfere adherents of this or that creed, including clerics, equally with other citizens to participate in national will by voting. Supporters of this or that religion have freedom of choice and expression of their political convictions and political interests, decision-making and realization of the corresponding activity, and not as members of religious associations, but directly as the citizens or members of political parties.
Thus, in the Russian Federation as the democratic and secular state, the religious association cannot substitute the political party, it is non party and apolitical, while the party by virtue of the political nature can be the religious organization, it is non religious and unconfessional Anyway, the party, proceeding from the political applicability, is created not for expression and protection of these or that religious interests - for these purposes there can be created corresponding public associations in other organizational - legal forms established by the law.
Relating to the fundamentals of the constitutional system of the Russian Federation the principles of pluralistic democracy, multi-party system and the secular state regarding legislative regulation of creation and activity (including conditions of registration) of political parties cannot be interpreted and realized without taking into account features of historical development of Russia, outside the context of national and confessional structure of the Russian society, and the features of interaction of the state, political authority, ethnic groups and religious confessions.
The Constitution of the Russian Federation stipulates, that the barrier of sovereignty and the unique source of power in the Russian Federation shall be the multinational people (Part 1 Article 3). In the name of the multinational people of Russia as the unity of the citizens of different nationalities and beliefs united with the common destiny and keeping historically developed state unity, the adoption of the Constitution of the Russian Federation (preamble) has been made.
Therefore the principle of the secular state in the understanding developed in the countries with monoconfessional and mononational structure of the society and with developed traditions of religious tolerance and pluralism (that allowed, in particular, allow in some countries the political parties based on ideology on Christian democracy as the concept «Christian» in the given case leaves far beyond confessional frameworks and designates belonging to the European system of values and culture), cannot be automatically applied in the Russian Federation.
In the multinational and multiconfessional Russia - owing to features of functioning of the leading dogmas (on the one hand, the Orthodoxy as the prevailing direction of christianity, and on the other hand - the Moslems), their influence on social life, including political ideology, historically substantially closely connected with the national - ethnic factor, - such concepts as «Christian», «orthodox», «Muslim», «Russian», «Tatar», etc., is associated in the public consciousness more likely with concrete confessions and separate nations, than with the common system of values of the Russian people as a whole.
Besides at present the Russian society, including political parties and religious associations, has not yet got solid experience of democratic existence. In these conditions the parties created according to national or religious attribute, would inevitably be guided by primary upholding of the rights of the corresponding national (ethnic) or religious groups. The competition of the parties formed according to the national or religious attribute which is especially sharply shown in the pre-election struggle for the voices of voters, is capable instead of consolidation of a society to result in stratification of multinational people of Russia, opposition of ethnic and religious values, glorification of the one and belittling of the others and finally to giving dominating value not to the national values, but to any ethnic ideology or religion which would contradict the Constitution of the Russian Federation, its Articles 13 and 14.
Creation of parties according to the religious attribute would open the way to politization of religion and religious associations, political fundamentalism and clergyfication of the parties, and in its turn would entail tearing away of religion as the form of social identity and its replacement from the system of factors consolidating the society. Creation of parties according to the national attribute could lead to prevalence in elective authorities of the representatives of the parties reflecting interests of the large ethnic groups to the detriment of interests of small ethnic groups, and to infringement of the stipulated by the Constitution of the Russian Federation principle of legal equality irrespective of national belonging (Part 2 Article 6, Part 4 Article 13, Part 2 Article 19).
Thus, the constitutional principle of the democratic and secular state referring to the concrete historical realities developed in the Russian Federation as the multinational and multiconfessional country, does not suppose creation of political parties according to the national or religious belonging.
Therefore, in conditions of intensity, of interethnic and interconfessional relations, and of growing political claims on the part of modern religious fundamentalism when coming into the sphere of politics (i.e., in sphere of struggle of power) differentiation to the religious belonging which can get national attribute, can lead to the split of the society to national - religious components (in particular, to Slavonic-Christian and Turk-Muslim), introduction into the Federal Law «About political parties» the interdiction on creation of political parties according to national or religious attribute corresponds to authentic sense of Articles of 13 and 14 of the Constitution of the Russian Federation in interrelation with its Articles 19 (Part 1 and 2), 28 and 29 and is the appropriate concrete definition of their regulations.
Whether creation of regional parties is constitutional?
Formation of effective system of institutes of the civil society is impossible without taking into account of the circumstance, that political self-organizing of the population is realized by territorial communities. In Russia these are local (municipal) communities, the population of the subjects of the Russian Federation (regional communities), and at the supreme state-territorial level - the multinational Russian people. It means, that each of them should have real opportunities to participate in the federal political process, and in political process of regions and municipal units, including party-political activity. But whether it means that at each level of the territorial organization of the population there shall be possible creation of independent (territorial or interterritorial) public political organizations and whether political activity in regions and municipalities should be concentrated within the limits of territorial branches of the federal party structures?
The analysis of foreign practice of regulation of the corresponding sphere of the public relations allows to give the certain answer supposing admissibility of creation of such organizations. So, for example, in Germany dozens of parties act at the level of separate districts, in particular in Bavaria; in India several tens of national parties include about 300 parties acting within the limits of several states, at the level of separate states or at the local level; in Spain the major number of the parties working at the regional level, is concentrated basically in Catalonia and Basque Provinces; in Mexico presence of regional political parties is stipulated in Article41 of the Constitution; in the United Kingdom of Great Britain and Northern Ireland there are independent parties practically in all parts of the Kingdom (the Scotch national party, the Welsh national party, the unionist party of Ulster, etc.); In France various parties of Corsica and oversea departments are allocated with the right to take part in elections to the national Parliament; in Japan out of 10 thousand registered parties the overwhelming majority act at the local level (in prefectures and units of local self-management).
In the Russian legislation the given question is solved essentially differently. What parity with the constitutional norms such approach is?
The Constitutional Court of the Russian Federation has been petitioned by the political organization of the Kaliningrad region «the Baltic republican party» with the complaint on the infringement of the constitutional rights and freedoms by the regulations of Articles 1, 3 (item 2), 5 and 47 (item 6) of the Federal law «About political parties».
The given organization was founded on March 21, 1992 and was registered on December 1, 1993. In connection with the change of the legislation on September 24, 1998 it has passed re-registration in Department of the Ministry of Justice of the Russian Federation on the Kaliningrad region and has got the new registration certificate. In August 2002 the above mentioned Department of Ministry of Justice of the Russian Federation addressed to the applicant with the instruction of the requirement of exception of the word «party» from the name of the organization and on October 23, 2002 activity of «the Baltic republican party» has been stayed for the period of six months. The legality of stay has been confirmed by the Decisions of the Kaliningrad regional court from November 14, 2002 and of the Supreme Court of the Russian Federation from January 30, 2003.
In the opinion of the applicant, the disputed regulations contradict the constitutional principles of federalism and political variety (Articles 1 and 13 of the Constitution of the Russian Federation) as they forbid to create at own discretion of the citizens on the territory of one or several subjects of Federation regional political organizations and establish «uniform, that is unitary order of existence of parties»; demand, that the political party should have regional branches in more than half of the subjects of the Russian Federation, thus in the subject of the Russian Federation there can be created only one regional branch of the given political party; and the party should consist not less than ten thousand members, and regional branches more than in half of the subjects of the Russian Federation - not less than hundred persons.
In Resolution on the given case, made on February, 1, 2005 , the Constitutional Court of the Russian Federation has specified, first of all, the fact, that the Constitution of the Russian Federation, stipulating the principle of multi-party system, does not determine, at what territorial level should be created political parties - all-Russian, inter-regional or local; it does not contain direct interdiction on creation of regional parties. Hence, the restriction established by the disputed Law shall be legal in the event if it is necessary for the purpose of protection of the constitutional values as it is stipulated in Part 3 Article 55 of the Constitution of the Russian Federation.
Thus, activity of political parties according to the Constitutional Court, is directly connected with organization and functioning of public (political) authority: they are included in the process of imperious relations and at the same time, being voluntary associations within the framework of the civil society, act as the necessary institute of representative democracy providing participation of the citizens in the political life of the society, political interaction of the civil society and the state, integrity and stability of the political system. The given circumstance allows the federal legislator to establish - for development of the constitutional regulations about the right of each person to association - additional requirements to creation of political parties, their structure and realization of authorized activity.
In the sense of the Federal Law «About political parties», political parties are created for maintenance of participation of citizens in the political life of the entire Russian Federation, but not its separate part, they are called to form political will of the multinational Russian people as the whole, to express, first of all, national interests; the purposes of their activity should not associate extremely with interests of separate regions. At the same time, carrying out their activity directly in the regions, political parties should provide combination of national and regional interests.
In this sense structurization of political space by means of coordination of the opportunity of getting the status of the political party only by public associations which express interests of the greater part of the citizens irrespective of the region of residing and act on the entire or the greater part of the territory of the Russian Federation, it is directed against crushing political forces, existence of the number of artificially created (especially during election campaigns) small parties whose activity is designed for a short time and which are not capable to execute the applicability as the public association in the political system of the society.
Taking into account these circumstances, the Constitutional Court, making the decision on corresponding case, grounded on the fact that in modern conditions, when the Russian society has not yet got the solid experience of democratic existence when serious calls on the part of separative, nationalist, terrorist forces take place, creation of regional political parties - as they would aspire to upholding mainly, especially regional and local interests - could lead to infringement of the state integrity and unity of the system of the government as the fundamentals of the federal structure of Russia. Besides, the legal sense between regional political parties and parties which would actually be formed according to national or religious belonging would be washed away.
In the conditions complex character of the Russian Federation creation in each subject of the Russian Federation of regional and local political parties could also lead to creation of a number of regional party systems that would lead to transformation of the formed party system as a part of political system of the country in the factor of easing of developing Russian democracy, system of democracy, federalism, unity of the country and by that easing of the constitutional guarantees of rights and freedoms, including the right to freedom of association in political parties, equality of rights of the citizens to creation and participation in activity of political parties on the entire territory of the Russian Federation.
At the same time the given position of the Constitutional Court of the Russian Federation, in our opinion, does not exclude the opportunity of such legislative regulation of party-political relations at which even under the conditions of existence of circumstances which, in the opinion of the Constitutional Court of the Russian Federation, interfere with creation of regional and local political parties, there would be admitted at present creation of inter-regional party-political units. Thus, concrete territorial scales of the corresponding organizations could be established by the legislator proceeding from the objective criteria connected, in particular, with not only of processes of integration of the subjects of the Russian Federation, but, for example, on creation of nine federal districts as the specific form of the territorial - political basis of creation and functioning of federal administrative structures in the Russian state, etc. Within the framework of the given approach the constitutionally significant purpose connected with maintenance of integrity of the Russian Federation by means of consolidation of political interests interconnected with large territorial unities should be taken into account. The given approach does not deny, but on the contrary, takes into account the circumstance that political parties being active participants of public - imperious relations, are one of the major forms of politic-legal institutionalization of the civil society which self-organizing by direct image is not connected with the state-territorial fundamentals of structure of public authority in the state.
Thus the restriction entered by the federal legislator according to the Resolution of the Constitutional Court, has the temporary character.
Simultaneously within the framework of the given case there has been considered the question about legislative requirements concerning the number of political parties. In this connection it has been pacified, that, recognizing multi-party system and guaranteeing the right to freedom of association in political parties and freedom to their activity, the Constitution of the Russian Federation predetermines neither quantity of parties, nor their numerical structure and does not assume impossibility of establishment of requirement about the minimal number of members of the party. Anyway, the federal legislator is called to settle these questions so that, on the one hand, the numerical structure and territorial scale of activity of political parties were not excessive and they did not encroach the major contents of the rights of the citizens to association and on the other hand - they were capable to carry out the authorized problems and functions as national (all-Russian) political parties, i.e. finally, the legislator should be guided by the criterion of reasonable sufficiency proceeding from the principle of harmony. At deciding of the question on numerical structure of political parties and territorial scale of their activity the legislator possesses sufficient degree of discretion, taking into account, that the given question in many respects is connected with political expediency. These quantitative criteria can get unconstitutional character in the event when the result of their application is impossibility of real realization of the constitutional right of citizens to association in political parties including if - in infringement of the constitutional principle of multi-party system - on their basis there would be created only one political party.
It is necessary to take into account, that the stipulated by Article 13 (Part 3) of the Constitution of the Russian Federation the principle of political variety is realized not only through multi-party system, creation and activity of parties of various ideological orientation. According to the regulation of the Federal law «About public associations» (Article 27) in their interrelation with the regulations of elective laws, laws on referenda and others, it proceeds, that public associations have the most part of the same rights, as political parties: the right to participate in elections and referenda to make offers to organs of the government, to participate in development of decisions of organs of the government and local organs of self-management, to represent and protect their own rights, legitimate interests of the members and participants, and other citizens in the organs of government, local organs of self-management and public associations, to hold assemblies, meetings, demonstrations, processions and picketing. For realization of the authorized purposes these public associations have the right to found mass media and to carry out publishing, to distribute freely information on their activity, to carry out in full the powers stipulated by the federal legislation on public associations.
Besides the Constitutional Court of the Russian Federation concerning the regulation of the Federal law «About political parties» has emphasized, that the political party is the unique kind of public association which possesses the right to put forward candidates independently (lists of candidates) to deputies and other elective offices in the organs of the government (item 1 Article 36), does not mean denying the right of other public associations, including regional and local whose charter provides participation in elections and (or) referenda to put forward candidates (lists of candidates) to deputies and other elective offices to the organs of local self-management, and the rights to initiate holding a referendum of a corresponding level - regional or local. Regional public associations in the stipulated by the elective legislation order shall have the right to realize public control over organization and holding elections, to direct their representatives as observers, in allowable forms to support political parties participating in elections, their regional branches and their candidates.
Proceeding from the above mentioned, the disputed legislative regulations have been recognized corresponding to the Constitution of the Russian Federation.
Thus, realizing the functions on protection of the fundamentals of the constitutional system of Russia, the Constitutional Court shall simultaneously be the important factor for perfection and development of institution system of constitutional system as the state-legal expression of a civil society.
constitutional political partie
1. См.: Ермаков А.Д. Политические партии - институт конституционного строя Российской Федерации // Автореф. дисс. к.ю.н. - Саратов, 2004. - С. 9.
2. См.: постановление Конституционного Суда Российской Федерации от 23 ноября 2009 г. №16-П по делу о проверке конституционности абзацев третьего и четвертого п. 3 ст. 27 Федерального закона от 26 сентября 2007 г. «О свободе совести и о религиозных объединениях» в связи с жалобами Религиозного общества Свидетелей Иеговы в городе Ярославле и религиозного объединения «Христианская церковь Прославления» // СЗ РФ. 2009. - №51. - Ст. 6363.
3. См.: Определение Конституционного Суда Российской Федерации от 9 апреля 2012 г. №113-О об отказе в принятии к рассмотрению жалобы граждан И.А. Зайковой, Н.Х. Иванцовой, В.А. Илюхина, С.В. Кадеева, И.А. Никитина, А.Г. Прозорова, В.Г. Работнева, Н.П. Сергеевой, Н.Р. Халиковой и Ф.Ф. Халикова на нарушение их конституционных прав п. 1 ст. 9 и п. 5 ст. 11 Федерального закона «О свободе совести и о религиозных объединениях» // Вестник КС РФ. 2012. №6. См. также: Определение Конституционного Суда Российской Федерации от 13 апреля 2010 г. №7-О по жалобе религиозного объединения «Независимый российский регион Общества Иисуса» на нарушение конституционных прав и свобод п. 3, 4 и 5 ст. 8, ст. 9 и 13, п. 3 и 4 ст. 27 Федерального закона «О свободе совести и о религиозных объединениях» // СЗ РФ. 2000. №19. Ст. 2010; Определение Конституционного Суда Российской Федерации от 7 февраля 2002 г. №7-О по жалобе религиозного объединения «Московское отделение Армии Спасения» на нарушение конституционных прав и свобод п. 4 ст. 27 Федерального закона «О свободе совести и о религиозных объединениях» // СЗ РФ. 2002. - №9. - Ст. 963.
4. См.: постановление Конституционного Суда РФ от 1 февраля 2012 г. №1-П по делу о проверке конституционности абзацев второго и третьего п. 2 ст. 3 и п. 6 ст. 47 Федерального закона «О политических партиях» в связи с жалобой общественно-политической организации «Балтийская республиканская партия» // Российская газета. 2012. 8 февраля.
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