Principle res judicata in practice of the European court on human rights and of the constitutional court of the Russian Federation

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Abstract work

PRINCIPLE RES JUDICATA IN PRACTICE OF THE EUROPEAN COURT ON HUMAN RIGHTS AND OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

The principle res judicata, i.e. respect of the final judgement is one of consequences of the principle of legal definiteness [1]. The principle of legal definiteness assumes stability of legal regulation; participants of legal relations should have an opportunity in reasonable limits to foresee consequences of the behavior and to be confident in invariance of the officially recognized status, rights and duties [2]. In particular the principle of legal definiteness requires that in case when final decision made by court on any question would not be put under doubt [3]. It means that none of the sides should not possess the right to demand revision of final and enforced judgement simply for the purpose of renewal of trial and making the new decision on the case. Powers of higher courts on revision of judgements should be carried out for the purpose of correction of miscarriages of justice and inadequate legal proceedings instead of carrying out new trial of the case. Revision should not turn to the latent appeal, and simply in an opportunity of two points of view concerning the subject of dispute is not the ground for revision of the decision. Deviation from the given principle can be justified, only when it is required by the circumstances of essential and insuperable character [4].

For the first time the European Court ascertained incompatibility of revision of the judgement within the framework of the procedure similar to the Russian supervising proceedings, with the principle of legal definiteness and the right to fair proceeding in decision on the case of Brumaresku against Romania. The European Court has specified, that giving to the General Prosecutor by the Civil Procedural Code of Romania by the unlimited of any term of the right to appeal to the Supreme Court of Justice with demand on cancellation of the final and enforced judgement on the case in which he was not the side, leads to the judgement be appealed during uncertain time. In the given case on the ground of the appeal of the General Prosecutor the Supreme Court of Justice has brought to nothing results of the whole litigation terminated in the final judgement which by virtue of the principle res judicata was not subjected to revision and besides has already been executed. The European Court considered, that, having applied the regulations of the Civil Procedural code, the Supreme Court of Justice has violated the principle of legal definiteness, that in the concrete circumstances of the given case has simultaneously become the infringement of the right of the applicant whose favour the cancelled judgement has taken place, to the fair proceeding guaranteed by item 1 Article 6 of the Convention [5].

The interrelation of the principle of legal definiteness and of the right to fair proceeding has been cleared in conterminous opinions of a number of judges on the given case. In conterminous opinion of Sir N. Brattsy to whom Judge B. Zupanchich has joined, specifies, that the fundamental requirement for fair proceeding is equality of the sides. In case when one of the sides on the case is the state, the principle of equality can be violated, if the European Court has ascertained in the decision on the case the Greek oil refining factories "Stran" and Stratis Andreadis against Greece [6], intervention of the legislative power in realization of justice assumes influence on the legal resolution of the dispute. Accordingly it is possible to conclude, that the principle of equality of the sides appears violated when at participation in proceedings of the state as one of the sides the Civil Procedural Code gives the General Prosecutor as the state official the right at any time to demand cancellation of the final and obligatory judgement made in favour of the private person. Besides the right to judicial protection becomes illusory if the legal system of the state-participant of the Convention supposes the opportunity of cancellation of the judgement, final, obligatory and even executed by the Supreme Court of Justice on demand of the General Prosecutor which can be requested at any time.

In the opinion of Judge K. Rozakis, the right to judicial protection is not simply theoretical right to consideration of the case in the internal court, it comprises lawful expectations that the final judgement will be respected by authorities and will be executed. In the considered case the applicant, possessing the right to bring the dispute with the state for consideration of court, could expect for reception of the decision possessing the status res judicata and subjected to execution, consequence of that would be restoration of his right to property. But his right to access to justice becomes illusory when on the ground of the Civil procedural Code the General Prosecutor and the Supreme Court of Justice interfere and cancel the decision of court of the first instance and favorable consequences of the given decision for the applicant. When the legal system gives courts the right to make final decisions, and then supposes, that the given decisions should be subsequently cancelled, does not only legal definiteness suffer, but existence of such court is put under doubt for, in effect, it does not possess powers to resolve finally legal questions. And it is rather doubtful, that, the person applying in such court for the resolution of the dispute can really realize his right to judicial protection and to access to justice.

In further decisions on similar cases the European Court has invariable emphasized, that the right to access to justice would be illusory if the national legal system of the state-participant of the Convention supposed that the final and obligatory judgement remained not working to the detriment of one of the sides. It would be impossible, if item 1 Article 6 of the Convention in detail describing the remedial guarantees given to the sides, - fair, public and fast trial - would leave without protection execution of judgement; interpretation of Article 6 as concerning exclusively access to justice and proceeding, probably, would lead to the situations incompatible with the principle of supremacy of the law which the countries - participants have undertaken to respect at ratification of the Convention [7].

The right of the side to justice in the equal measure would be illusory if the legal system of the state-participant of the Convention supposed that the judgement which has become final and obligatory, was cancelled by the higher court on the protest of the state official whose powers to appeal with the given requirements are not limited by any term therefore judgements can be disputed during the uncertain time [8]. The European Court believes, that the judicial system to which the procedure of bringing the protests is inherent and, hence, the opportunity of numerous cancellation of final judgements is incompatible with a principle of legal definiteness [9].

The European Court has repeatedly recognized that revision of judgements which have entered validity, in the order of supervision, stipulated by the Russian Civil Procedural legislation, violates the principle of legal definiteness and the right to access to justice [10]. And even in cases when as a result of the new proceeding the requirements of applicants have been in full or partly satisfied, the European Court has specified, that the fact of cancellation of the judgement entered into validity compelled them to undergo the situation of legal uncertainty, and has ascertained infringement of item 1 Article 6 of the Convention [11].

All these decisions of the European Court concerned the supervising proceeding stipulated earlier by the working Civil Procedural Code of RSFSR according to which regulations the protests in the order of supervision could be brought by the certain officials of the bodies of the Prosecutor's Office and the courts, not participating in the case, and during unlimited time after coming of the decision into force. In the new Civil Procedural Code of the Russian Federation from November 14, 2002 (with the subsequent changes and additions) the order of revision of judicial resolutions in the order of supervision has been radically changed. However, there are certain doubts concerning compatibility of supervising proceeding with the principle of legal definiteness.

These problems were discussed at the seminar "Revision of judgements in the order of supervision in the Russian Federation: prospects of reform according to the requirements of the European Court on human rights", held on 21, 22 February, 2005 in Strasbourg by the Russian authorities together with institutes of the Council of Europe. The participants of the seminar - from the Russian side they were chairmen and judges of higher courts, representatives of the Prosecutor 's Office, Administration of the President, lawyers - have recognized the necessity of the further reforming of supervising proceeding in Russia [12].

Directions of the required transformations have been designated in the preliminary Resolution of the Committee of the Ministers of the Council of Europe from February 8, 2006, adopted during the control over the performance by the Russian Federation of decisions of the European Court on cases of Ryabykh and Volkov against Russia [13]. The committee of Ministers has reminded, that the obligation according to item 1 Article 46 of the Convention to execute decisions of the European Court includes taking measures of general character directed to prevention of new infringements of the Convention, similar themes established by Court. And concerning cases similar to the considered such measures should be taken quickly as they reveal the structural problem which can generate a number of the similar infringements of the Convention.

The Committee of Ministers has approved changes undergone in the procedure of revision of judgements in the order supervision in the new Civil Procedural Code, come into force from February 1, 2003. As a result some problems laying in the basis of infringements established by the European Court, have been eliminated, in particular by means of giving the right to initiate of supervising proceeding only to the persons participating in the case, and to the persons, whose legitimate interests have been violated by judicial resolutions (Part 1 Article 376) [14], and restrictions with one year term during which the appeal of judicial resolutions in the order of supervision is admitted (Part 2 Article 376). However, according to the Committee of Ministers, there are some doubts that the current procedure of revision of judgements in the order of supervision actually prevents new infringements of the principle of the legal definiteness confirmed by the Convention.

In this connection the Committee of Ministers has noted, that the working procedure still supposes, that the legitimate confidence of the sides in the judgement which has come into force and is subjected to execution, appears vain and that uncertainty resulting from it, can proceed during precisely not limited period after the supervising complaint has been transmitted.

The Committee of Ministers has considered with understanding to that the Russian authorities and the significant part of the Russian legal community considers it necessary during the certain time to preserve supervising proceeding as it is the unique real mechanism of correction of numerous essential mistakes and lacks of judgements made at the local and regional levels. However the Committee of Ministers has expressed concern to that circumstance, that at the regional level frequently one and the same court on one and the same case consistently acts as the cassation and supervising instance, and has emphasized, that the court should have the opportunity to correct all lacks in decisions of the subordinate courts within the framework of the uniform system of proceedings so that the subsequent application to the supervising proceeding became actually exclusive or absolutely not necessary.

The Committee of Ministers has emphasized, that the judgement obligatory and subjected to execution can be changed solely at presence of exclusive circumstances whereas in the order of the current supervising proceeding the given decision can be cancelled in connection with any infringement of material or procedural right. In effectively working judicial system mistakes and lacks in judgements should be mainly considered within the framework of common appeal and-or cassation proceeding, before the decision becomes obligatory and subjected to execution in order to avoid danger of infringement of the subsequent right of the sides to rely on compulsion of judgements. Therefore restriction of the opportunity of revision of judgements obligatory and subjected to execution in the order of supervision by exclusive circumstances should be accompanied by perfection of the judicial system and improvement of quality of proceedings to reduce the necessity of correction of miscarriages of justice by means of supervising proceedings.

The Committee of Ministers has called the Russian authorities to carry out the further reforming of the civil legal proceedings, to provide full respect of the principle of legal definiteness. By means of the given reform it is necessary to provide, that miscarriages of justice were corrected during common appeal and-or cassation proceeding before the judgement becomes final, and to give the corresponding courts sufficient means and powers for the better realization of their duties.

Before carrying out of this all-round reform the Committee of Ministers recommended to take the preliminary measures directed to prevention of new infringements of the Convention, in particular:

- To continue gradual reduction of application of supervising proceeding, including by means of establishment of the certain term of appeal with the supervising complaint and restriction of the allowable grounds for excitation of supervising proceeding so that they comprised only the most serious infringements of the right;

- To provide observance in supervising proceeding of requirements of fair proceeding, including principles of competitiveness, equality of the sides, etc.;

- To simplify the working order of proceeding in court of supervising instance for the purpose of its acceleration;

- To limit quantity of consecutive supervising complaints which can be transmitted on the same case;

- To prevent submission of the unreasonable supervising complaints representing abusing of the right to application which, as a matter of fact, are one more disguised appeal motivated with disagreement with estimation of circumstances of the case, given by subordinate courts within the limits of their competence and according to the law;

- To approve the measures inducing the sides properly and at the greatest possible measure to apply accessible cassation complaints, to provide correction of miscarriages of justice before the judgement becomes final and subjected to application [15].

The committee of Ministers has offered the competent Russian authorities to give within a year the plan of actions on taking and realization of measures of general character necessary for prevention of infringements of the requirements of legal definiteness, and has decided to continue consideration of the given question within the first half of the year 2007.

In 2006 the European Court made decisions which have recognized infringement of the principle of legal definiteness in connection with revision of judgements in the order of supervision according to the Civil Procedural Code of the Russian Federation from November 14, 2002.

In the case of Borshchevsky against Russia the state - respondent referred that in the given case the supervising proceeding has been initiated by department of pension fund which acted as the person participating in the case instead of the state body. However, the European Court did not consider the given circumstance deciding [16]. The European Court first of all has noted, that between coming into force of the judgement made in favour of the applicant, and excitation of supervising proceeding there has passed extremely long period of time - more than two years and three months. The Civil Procedural Code of the RSFSR has not established deadlines for appeal of judgements in the order of supervision, thus, appeal of judgements was supposed during the uncertain time. In the given case the supervising proceeding has been excited according to the new Civil Procedural Code of the Russian Federation which provides the opportunity of application with the supervising complaint within one year term from the date of coming of the decision into validity (Part 2 Article 376). However the regulations determining the order of coming into force of the Code according to the explanations of the Plenum of the Supreme Court of the Russian Federation, suppose appeal in court of the supervising instance of any judgement which came into force before February 1, 2003 [17] In this case department of pension fund has taken advantage of the opportunity and has appealed the decision made in favour of the applicant which came into force 25 months ago [18].

The European Court has emphasized, that the judgement obligatory and subjected to execution can be cancelled solely at presence of exclusive circumstances, instead of making another decision on the case. In the Russian legal system on the ground for cancellation or changes of judgements by courts of appeal instance [19] appreciably coincide with the grounds for cancellation or change of judgements in the order of supervision (item 4 Part 1 Article 362 and Article 387 of the Civil Procedural Code of the Russian Federation). Thus, situations when the final judgement in favour of the applicant is put under doubt, could be possible to avoid, if department of pension fund had applied common means of appeal. It is necessary to note, however, that the current Civil Procedural Code of the Russian Federation, as well as earlier working Civil Procedural Code of the RSFSR, supposes application in court of supervising instance even if the person participating in the case has not preliminary settled common means of appeal. In the given case department of the pension fund, at least, has twice not taken advantage of the right to appeal the judgement, having missed the ten-day term of submission of cassation complaints concerning the decision from April, 5, 2002 and the definition from October, 14, 2002 concerning the same question. The representative of department of pension fund was not present in court session on October, 14, 2002 though had been properly notified about it. The state - respondent has not specified any exclusive circumstances which could interfere with representation on behalf of department of pension fund of the arguments to the district court and to apply common means of appeal during the appropriate time [20]. constitutional right minister judicial

The European Court considered, that, having satisfied the requirement of department of pension fund about cancellation of judgement from April, 5, 2002, the Presidium of the Krasnodar territory court has violated the principle of legal definiteness and the right of the applicant to "access to justice", stipulated by item 1 Article 6 of the Convention.

The positions expressed by the European Court in the decision on the case of Borshchevsky, have been confirmed in the decision on the case Nelubin against Russia. In the given case the Court has recognized infringement of the principle of legal definiteness in connection with cancellation in the order of supervision of the judgement on the ground of the complaint submitted later three months after its coming into force. The fact, that the supervising complaint has been submitted during a rather short term after introduction of the decision into validity (to which the state - respondent referred), the European Court considered not having crucial importance. The court brought focus to the circumstance, that the respondent did not apply common means of appeal, having missed the established for it 10-day term and the government has not specified any exclusive circumstances which would interfere with it [21].

In the case Prisyazhnikova and Dolgopolov against Russia, the European Court considered the complaint on cancellation of the judgement made in favour of applicants, as a result of supervising proceeding excited after expiry of more than 13 months after its coming into force. And in the given case the question was on the decision which has become legally obligatory after introduction in action of the Civil Procedural Code of the Russian Federation according to which regulation of Part 2 Article 376 of the Civil Procedural Code was distributed to it according to which judgements can be appealed in court of supervising instance within a year from the date of their introduction into validity. But as the term "judgement" [22] covers both decisions of courts on essence of the case, and intermediate decisions [23] (Part 1 Article 13 of the Civil Procedural Code of the Russian Federation) every time after decision-making (definition) about refusal in excitation of supervising proceeding, in the given case the Definition from August 11, 2003, the period of one-year term of application in court of supervising instance renews. Uncertainty of the term for initiation of supervising proceeding has allowed the respondent - the Ministry of Finance - to submit consistently three complaints to court of supervising instance, the last of which has been submitted 14 months later after the decision in favour of the applicants became obligatory and subjected to execution [24].

The European Court has noted that supervising complaints of the Ministry of Finance were actually grounded on the similar arguments. The first complaint has been rejected by the judge of the Supreme Court of Republic of Sakha (Yakutia), the second - has been rejected by the Presidium of the same court, and the third - has been satisfied by the Chairman of the given court. According to Article 381 (Part 6) and 383 (Part 2) of the Civil Procedural Code of the Russian Federation, the chairman of the regional court [25] has the right not to agree with the definition of the judge of the given court about refusal in excitation of supervising proceeding[26]. Thus the given power of the chairman of the court is not limited by any term [27].

The European Court has emphasized, that, according to the Civil Procedural Code of the Russian Federation, the power of the chairman of the court to cancel decisions of other judges is not limited. The chairman of court has unlimited discretionary powers concerning excitation of supervising proceeding; and simple disagreement with the decision of the judge is the sufficient ground for it ( Part 6 Article 381, Part 2 Article 383 of the Civil Procedural Code of the Russian Federation). For realization by the chairman of the court of his discretionary powers it is not necessary to have applications of the persons participating in the case, and he can excite supervising proceeding at any time [28].

The European Court has recognized infringement of the right of the applicant to "access to justice" in many cases when the judgement being final and obligatory, has been cancelled on the ground of application of the state official, whose powers to appeal with the given requirement have not been limited by the certain term. In the given case the state - respondent has not presented any reasons which would allow the European Court to come to another decision. In this connection the European Court has recognized, that cancellation of the judgement in the order of supervising proceeding excited by the Chairman of the Supreme Court of Republic of Sakha (Yakutia) violates the principle of legal definiteness and the right of the applicants to "access to justice" and has established infringement of item 1 Article 6 of the Convention [29].

It is necessary to note, that, according to practice of the European Court, cancellation in the order of supervision of the judgement obligatory and subjected to execution recognizing liabilities in favour of the applicant according to which he can "lawfully expect", that they will be executed, makes not only infringement of the principle of legal definiteness and of the right to "access to justice", but also intervention in realization of the right of unobstructed use of property guaranteed by Article 1 Report No. 1 to Convention [30]. The European Court considers such intervention even if it is stipulated by the law and pursues the legitimate purpose, as disproportionate, i.e. assigning on the applicant excessive burden, and consequently incompatible with Article 1 Report No. 1 to the Convention [31].

Constitution of the Russian Federation of 1993 proclaimed: "Rights and freedoms of a person and a citizen shall be directly working. They determine sense, contents and application of laws, activity of the legislative and executive power, local self-management and are provided by justice" [1].

Recognition of rights and freedoms of a person and a citizen directly working means, that a person and a citizen can realize rights and freedoms, and protect them in case of infringement, being guided by Constitution, referring to it [2].

For the first time in domestic history of constitutionalism, Constitution of Russia of 1993 gained the extensive section about rights and freedoms of a person. In fact a person possessing the right to realization economic, cultural, spiritual and political potentialities represents itself as major condition of existence of the civil society. The person can act freely for achievement of the purpose, and the civil society should, by means of legal mechanisms, protect its interests, care of it, preserve it against all troubles. Thus, it (the person), in its turn should be obliged to observe all rights of the civil society, to work on it and to commensurate all its actions with its interests and interests of other members. The person should be free, but in conditions of an open society "freedom shall be an opportunity to do all for the sake of its own happiness that does not harm happiness of other members of the society" [3]. According to the researcher "Any freedom should turn to the contrast when it is not limited by frameworks of the law as the legal imperative of practical activities" [4]. Comprehension of importance to transfer accent from understanding of freedom as individual condition to understanding of necessity of establishment of the real civil freedom whose basis shall be the law providing an opportunity of its existence is necessary.

Constitution of Russia stipulates the potential realization of which meant maintenance of freedom and valid humanism. Actually the civil society in Russia is focused on the recognition of human rights as the supreme value and their fixing as fundamental in Constitution of the state, and also development of these ideas in the current legislation.

Fundamental rights and freedoms of a person and a citizen have determined sense, contents and application of laws, activity of institutes of the civil society and the state organs. And "in their common value constitutional regulations about rights and freedoms of a person and a citizen shall be most important and, finally, the unique criterion of presence or absence, observance or denying of the law in general" [5]. The civil society which has put the goal of maintenance of rights and freedoms of a person in Russia, shall require, that the reaching of the given purpose should go simultaneously with strengthening and development of the lawful state.

Development of the lawful state actually means the end of domination of management personnel over the civil society, identity of the principle "not people for the state, but the state for people". Thus, rights and freedoms of a person have formed the basis for the whole legal system of a civil society. Their recognition and observance have become a symbol of validity in internal affairs of the state, and also in interstate relations within the framework of which the term "human rights" acts as key. In fact human rights embody universal conventional categories of humanism, justice, freedom, equality, democracy, mercy, having established the priority role of the person in public relations. We shall agree with B.S. Glushachenko specifying, that "rights, determining the measure of freedom of people, are more and more realized as the source of progress and satisfaction of the major individual needs and interests in their harmonious combination with public interests" [6]. Objectively existence and development of the law most adequately expressing public needs and interests have become the major condition of development of the civil society. Thus "human rights (in these or those forms and volumes of their existence and expression) shall be the necessary, integral and inevitable component of any law determined (namely - as subjective - human) aspect of expression of life and realization of the form of freedom and equality of people. Law without human rights is impossible, the same as human rights - without and outside the law" [7]. The fundamental rights and freedoms of a person shall be substantial part of the whole system of the post Soviet law of Russia.

It is necessary to recognize, that direct application of rights and freedoms of a person fixed in Constitution, does not remove problems of perfection of mechanisms and procedures (constitutional, judicial, administrative and others), protection and maintenance of rights and freedoms of the citizens. They do make reliable state protection of rights of the citizens which is the major factor of development of legal statehood.

The last decade of 20th century in Russia was the time of reforming of the legislation, the time of its democratization. Special value was given to transformation of the legislative file concerning rights and freedoms of a person and a citizen; regarding definition of mechanisms and procedures of their protection.

One of the serious steps forward on the way of democratization of the legislation in the specified field has become adoption of the Federal Law of the Russian Federation from February 25, 1993 No. 4866-1 "About appeal in court of actions and decisions infringing rights and freedoms of the citizens" [8]. It allowed appealing actions and decisions of the representative organs, public organizations and other public associations, as well as military officials and organs of military management.

The following stage on the way of maintenance of the most complete protection of rights and freedoms of the citizens was the Federal Law of the Russian Federation from December 14, 1995 No. 197-Federal Law "About entry of changes and additions to the Federal Law "About appeal in court of actions and decisions infringing rights and freedoms of the citizens" from February 25, 1993 No. 4866-1" [9]. It expanded the circle of organs and officials, whose decisions and actions can be appealed in court. Thus, it is specified that the responsibility of the civil official comes in connection with its duty to recognize, observe and protect rights and freedoms of a person and a citizen according to Article 5 of the Federal Law from July 31, 1995 No.119-Federal Law "About fundamentals of public service in the Russian Federation" [10]. The collective and individual actions and decisions which can be appealed in court, is representation of the official information which has become the ground for committing an action (decision-making). The Law from April 27, 1993 establishes, that in court there can be appealed collective and individual actions by which there have been: infringed rights and freedoms of the citizens, created obstacles to realization by a citizen of his rights and freedoms, created obstacles to realization by the citizen of his rights and freedoms; illegally any duty has been assigned to the citizen or he has been illegally involved in any responsibility. Present full conformity with the contents of Article 46 of the Constitution adds that the citizen shall have the right to apply with the complaint, if the resulted consequences have come as a result of inactivity of the specified in the law organs and officials [11]. The basic addition of the specified law is inclusion in it of the norms about the right of each person to receive and the duty of officials, public officials is to give access to documents, materials directly infringing rights and freedoms of a person and a citizen if there are no restrictions established by the Federal Law on the information contained in the given documents and materials.

For the purpose of maintenance of guarantees of state protection of rights and freedoms of the citizens, their observance and respect by state organs, organs of local government and officials and according to Constitution of the Russian Federation there has been established the post of the Plenipotentiary on human rights in the Russian Federation. The special law determining the order of assignment to the post and release of the post of the Plenipotentiary, its competence, organizational forms and its activity, was the Federal Constitutional Law from February 26, 1996 No. 1-Federal Constitutional Law "About the Plenipotentiary on human rights in the Russian Federation" [12].

The major point of functioning of the given law is that the Plenipotentiary in the actions shall be independent and uncountable to the state organs and officials, shall be guided by the Constitution of the Russian Federation, Federal Constitutional Law "About the Plenipotentiary on human rights", conventional norms and principles of the international law, international agreements of the Russian Federation. The means determined by the Law, the Plenipotentiary shall promote restoration of the broken rights, perfection of legislation of the Russian Federation on human rights and to reduction of conformity with the conventional principles and norms of the international law, to development of the international cooperation in the sphere of human rights, to legal enlightenment on the questions of rights and freedoms of a person, forms and methods of their protection [13].

The Plenipotentiary on human rights in the Russian Federation shall consider complaints to decisions or action of the state organs, organs of local government, officials, and civil servants if earlier the applicant has appealed these decisions or actions (inactivity) in the judicial or administrative order, but disagrees with the decisions adopted on his complaint. The activity supplements existing means of protection of rights and freedoms of a person and a citizen. Thus, it is especially specified, that submission of the complaint of the Plenipotentiary on human rights in the Subject of the Russian Federation shall not be the ground for refusal in admission of the similar complaint for consideration by the Plenipotentiary on human rights in the Russian Federation [14]. The law stipulates broad prerogatives of the Plenipotentiary on human rights. Among them is the right of unobstructed visiting of any state organs, organs of local self-government of being present in sessions of their organs, visiting enterprises, establishments, the organizations irrespective of patterns of ownership, to request, to receive data, documents, materials necessary for consideration of the complaint, to receive explanations of officials and public officials, to carry out checks, expert examinations, study of criminal, civil and other cases concerning which the verdicts have come into legal force, and with the cases terminated in procedure and so on. We shall agree with L. Morozova [15], that great hopes in strengthening of guarantees of protection of rights and freedoms of a person have been assigned in the institute of the Plenipotentiary on human rights, established by Constitution of the Russian Federation and the Federal law. In fact democratic features of the institute such as independence, openness and availability to the citizens can promote finding strong positions in the system of law protecting mechanisms within the framework of a civil society and a lawful state.

We hope that realization of rights and freedoms of a person is impossible without democratic legislative base. The above mentioned analysis, allows to make the conclusion that, the normative legal acts adopted at the end of XX century in Russia expressed interests and will of the people, interests and will of the civil society, embodied the idea of human rights. Constitution, laws and other legal acts of the Russian state have greatly followed and met the ripened public needs. The leading role in formation of the law, most objectively and adequately expressing interests of the free and progressive person, was allocated to the civil society; as it is the very institute, which commensurating interests of the person and the state, has given the right the new vector of development, having regarded the person, his rights and freedoms of paramount importance.

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