Validity of decisions of the constitutional court: practical and theoretical aspects

System of special legal supremacy of the Constitution guarantees the main source of law. The introduction and improvement of the process of constitutional review in the Dnestr Moldavian Republic. Interpretation of the provisions of the Constitution.

Рубрика Государство и право
Вид реферат
Язык английский
Дата добавления 14.02.2015

Abstract work

Validity of decisions of the constitutional court: practical and theoretical aspects

The constitutional doctrine and practice have developed the corresponding system of special legal guarantees of supremacy of the Constitution in the system of sources of the law. Each of working at present foreign constitutions possesses specific individual features reflecting social, national, historical and other features of the corresponding countries.

At the same time foreign constitutions possess some common, conterminous features. For example, constitutions possess legal supremacy over other legal acts, their norms possess validity reflecting requirements that any law, the statutory-legal act should corresponded to the contents and the letter of the Constitution. For protection of the Constitution in the majority of the foreign states there is provided the constitutional supervision which duty is to control over the conformity of laws and statutory-legal acts of the Constitution which is the Fundamental Law of the state. Functions of the constitutional supervision are assigned to judicial bodies as they are very important for maintenance of the constitutional legality.

The above mentioned constitutional principles are reflected in the Constitution of the Pridnestrovskaia Moldavskaia Respublika. For example, Article 2 of the Constitution stipulates, that the Constitution of the Pridnestrovskaia Moldavskaia Respublika has the supreme validity and the direct action. Bodies of the government and management, of local self-management, officials, public associations and citizens are obliged to observe the Constitution and the laws of the Pridnestrovskaia Moldavskaia Respublika [1]. Article 80 (items 1, 2) of the Constitution of the Pridnestrovskaia Moldavskaia Respublika stipulate, that justice in the Pridnestrovskaia Moldavskaia Respublika is realized solely by court; the judicial authority is carried out by courts by means of the constitutional, civil, administrative, criminal and arbitration legal proceedings [2]. And according to Article 86 (item 1) of the Constitution of the Pridnestrovskaia Moldavskaia Respublika the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika shall be the body of the constitutional control in the Pridnestrovskaia Moldavskaia Respublika; shall guarantee supremacy of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, shall provide observance of the principle of division of the powers, shall guarantee the responsibility of the state under the citizen and of the citizen under the state [3]. Article 88 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika stipulates that decisions of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika shall be final. Acts or their separate regulations admitted unconstitutional shall lose force. Admission unconstitutional of international contract of the Pridnestrovskaia Moldavskaia Respublika attracts the consequences stipulated by the international law, by the Constitution of the Pridnestrovskaia Moldavskaia Respublika and the law. Law applying practice admitted unconstitutional, shall be subjected to termination; the corresponding decisions of the state bodies, of local self-management and officials should be reconsidered in the order established by the law [4].

Introduction of the institute of the constitutional control in the Pridnestrovskaia Moldavskaia Respublika - that is the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika, assignment of the Pridnestrovskaia Moldavskaia Respublika is the decision of the given court. Article 85 of the Constitutional law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika" fixes the constitutional principle concerning the validity of the decision according to which the decision of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika shall be final, not subjected to appeal and shall come into force in no event after its declaration. The decision of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika acts directly and does not require confirmation by other bodies and officials. The validity of the decision of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika about admission of the act unconstitutional cannot be overcome by repeated adoption of the same act. Acts or their separate regulations admitted unconstitutional lose force; international contracts of the Pridnestrovskaia Moldavskaia Respublika admitted not corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika Republic is not subjected to application. Decisions of courts and other bodies based on acts, admitted unconstitutional, are not subjected to execution and should be reconsidered in the order established by the law. In case admission of the legal act unconstitutional has created the blank in legal regulation the Constitution of the Pridnestrovskaia Moldavskaia Respublika [5] shall be directly applied.

Thus, the special constitutional status of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika as the supreme judicial body of the constitutional control, assumes general obligatory action of its acts on the entire territory of the Pridnestrovskaia Moldavskaia Respublika.

According to Article 6 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika the government of the Pridnestrovskaia Moldavskaia Respublika is realized on the basis of division into legislative, executive and judicial powers [6]. And according to the given constitutional norm and item 2 Article 86 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika the court comprises 6 judges. The President of the Pridnestrovskaia Moldavskaia Respublika, the Supreme Soviet of the Pridnestrovskaia Moldavskaia Respublika and the congress of judges of the Pridnestrovskaia Moldavskaia Respublika appoint two judges of the Constitutional Court correspondingly [7]. The decision of court by the specified structure of judges is made jointly. Hence, at decision-making on the concrete question, the given structure of the court has already expressed the opinion, therefore shall have no right to reconsider repeatedly the decision made earlier. The decision of the Constitutional Court contains the special legal norm finally confirming constitutionality of the regulation disputed earlier, removes the existing earlier uncertainty concerning its conformity to the Constitution. The established by the Constitutional Court fact of conformity of the norm of the law or of any other statutory act to the Constitution of the Pridnestrovskaia Moldavskaia Respublika cannot be established by anyone and should be admitted by all. Besides the Constitution of the Pridnestrovskaia Moldavskaia Respublika does not stipulate the opportunity of revision by the Constitutional Court of decisions made by it and formation for the given purpose of any other body. Thus, being the body of the constitutional control in the Pridnestrovskaia Moldavskaia Respublika, the Constitutional Court guarantees the supremacy of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, provides the observance of the principle of division of the powers, and guarantees the responsibility of the state under the citizen and the citizen under the state. In our opinion, in case of disagreement of the person with the decision of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika, the given person according to Articles 10, 46 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, shall have the right, to apply in the established order to interstate bodies on protection of the rights and legitimate interests [8].

As the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika acts as the special higher judicial instance, its decisions get the special validity. That is, fixing constitutionally the principle of validity of the decision, the decision of the Constitutional Court shall act directly and shall not require confirmation by other bodies and officials. The decision of the Constitutional Court brings finality and stability in law applying practice. And, the decision of the Constitutional Court admitting the position of the law or any other statutory act (according to the competence) not corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika, is the special norm simultaneously canceling its action. The given regulation brings the judgment to the level of the law, therefore it is already not simply the act of application of the law, it shall be the law. Therefore the law applier is the professional and is obliged to own not only statutory legal acts, but judgments as well.

In our opinion, judge of the Constitutional Court of the Russian Federation Vitruk N.V. has very precisely and correctly specified the validity of the decision of the Constitutional Court, having noted, that "the validity of final conclusions of the Constitutional Court expressing special norms, is equal to the validity of the Constitution as the legislator, and no other bodies of public authority can cancel or change conclusions of the Constitutional Court in final decisions about the verification of constitutionality of laws or other statutory acts or their separate regulations" [9].

Carrying out interpretation of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, the Constitutional Court makes decisions without which the text of the Fundamental Law cannot be considered full any more. Interpretation of the constitutional norm which has received official interpretation by the Constitutional Court is inadmissible by any other body. Besides the decision of the Constitutional Court can be officially explained only by the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika in session, at the petition of bodies or persons having the right to application to the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika, other bodies and persons to whom the petition is directed. The decision of the Constitutional Court is subjected to execution in no event after its publication or delivery of its official text if no other terms are specially fixed in it. Non execution, inadequate execution or hindrance to execution attracts the responsibility established by the current legislation of the Pridnestrovskaia Moldavskaia Respublika. Thus, the validity of decisions of the supreme body of the constitutional justice of the Pridnestrovskaia Moldavskaia Respublika is determined by the special legal status and the place of this body, both in the system of bodies of the government, and in the system of bodies of the judicial power.

The decisions of the Constitutional Court materializing such powers of Court, as: the verification of constitutionality of laws, of sublawful acts, contracts, etc., the resolution of disputes about the competence, and interpretation of the Constitution, are the special kind of sources of the constitutional law. The basic property of decisions of the Constitutional Court is their compulsion. Property of compulsion, first of all, means, that the act admitted unconstitutional, cannot be executed, applied or realized in different ways. The given act cannot form the basis for adoption of other legal acts henceforth. Besides the decision of the Constitutional Court generates for separate subjects of the constitutional legal relations absolutely other legal consequences. For example, judicial bodies and other law enforcement bodies are obliged to reconsider their decisions adopted on the basis of the act, admitted unconstitutional.

Besides it is necessary to note that the legislation on activity of the Constitutional Court does not establish, whether the binding character is distributed to the motivation part of the final decision or the given characteristic is inherent only to the deciding part. We think that the resolution part is inextricably related with the motivation part which grounds their adopted decision and in this connection it is impossible to consider the deciding part as independent. Moreover, the motivation part contains such regulations without which the resolution part would be not clear; therefore it also possesses the obligatory validity, the same as the deciding part of the decision of the Constitutional Court. As decisions of the Constitutional Court are insuperable, hence, it is impossible to overcome decisions of the given Court with the repeated adoption of the act admitted unconstitutional. Besides the decision of the Constitutional Court cannot be overcome as the decision adopted by the Constitutional Court is final, comes into force in no event after its declaration. And as the decision is made by the supreme judicial body of the constitutional control, hence, constitutionally it has final character and is not subjected to t appeal. The specified feature of decisions of the Constitutional Court emphasizes once again the significance of acts of the supreme body of the constitutional control of maintenance of the priority of the Constitution of the state.

Considering the question on the validity of decisions of the Constitutional Court as they directly are connected with the problem of their realization, it is necessary to note the following. A number of jurists including jurists of the Russian jurisprudence, relate the given question to the debatable one, for example, judges of the Constitutional Court of the Russian Federation V.O. Luchin and O.N. Doronina specify that decisions of the Court "approach to laws owing to their validity". At the same time, they are not directed to creation of the new norms of the law, they only cancel them and therefore "…it is not necessary to define these decisions as the new kind of statutory acts. Decisions of Court have subconstitutional character, they are secondary and have not regulative but protective character", and it differs them from laws. In the opinion of the given authors, the decision of the Constitutional Court of the Russian Federation can be defined as, "the legal act issued by court within the limits of the competence during realization of the constitutional control on the basis and in the performance of the Constitution, expressing its will by means of ascertaining conformity or discrepancy to the Constitution of the law considered by the Constitutional Court…" [10].

Judge of the Constitutional Court of the Russian Federation B.S. Ebzeev believes, that "decisions of the Constitutional Court, being sources of the law, form constitutionally legal precedents" [11]. However the decision of Court is not considered as the precedent having statutory - regulativee value though actually it acts such a way" [12].

Judge of the Constitutional Court of the Russian Federation T.G. Morshchakova considers, that "it's not quite precise to speak about case value of decisions of the Constitutional Court. For estimation of legal value of the decision of the Constitutional Court it is more suitable to use the concept prejudicial though there is no full conformity as well". Besides the author asserts that for estimation "for legal value of the decision of the Constitutional Court it is more suitable to use the concept prejudicial…" [13]. However the term "prejudicial" is applicable to law enforcement acts. Therefore it's not quite exact to consider the decision of the Constitutional Court the law enforcement act as the law enforcement acts are "individual legal acts" [14], ordering concrete legal relations between the certain subjects of the law according to the will of the legislator. For example, between the court of general jurisdiction and the physical person.

The decision of the Constitutional Court influences the norm of the current legislation intended for the wide range of subjects, therefore, in our opinion, the decision of the Constitutional Court cannot be the individual display of legal relations.

Besides each decision of the Constitutional Court is, first of all, interpretation of the Constitution. That is, interpreting the norms of the Constitution - the Fundamental Law of the state, decisions of the Constitutional Court, in the opinion of H.I. Gadzhiev, "appear neither a part of the constitutional norm, nor an independent source of the law, but they are allocated with the general obligatory force by the Constitution because are its "special independent continuation" [15]. According to the abovementioned reasons it follows, that decisions of the Constitutional Court by their form are specific judicial subconstitutional acts having special validity.

The stated and partial research of the validity of the decision of the Constitutional Court allow to make the conclusion that the Constitutional court as the supreme state body of the constitutional control works out the by virtue of the competence basic directions of development legislative and law enforcement practice. The Constitutional Court acts "as special supreme judicial body which character is caused by the specific nature of legal controlling disputes" [16]. Therefore decisions of the Constitutional Court having normative character are sources of the law [17].

And as decisions of the Constitutional Court are special judicial legal acts, hence, they are allocated with force of general compulsion. That is, general compulsion of the given acts means that they shall act on the entire territory of the state. And the legal nature of the above mentioned acts is the Constitutional Court, proceeding from corresponding constitutional principles, shall declare the contents of the objectively existing law.

Allowing questions of the law, revealing constitutionally-legal sense of instructions of statutory legal acts, estimating law enforcement practice and developing legal positions, the constitutional courts are frequently compelled to investigate such financial - legal category as the budget. At present the problem of insufficiency of budgetary appropriations, limitation of profitable sources and as consequence imbalance of budgets (all this is characteristic of subordinate budgets of budgetary system of the Russian Federation) is rather actual and topical. The problem of budgetary deficiency and public debt remains key in functioning public finances and is shown in the scale form both at federal and regional level.

The special significance and role of the budget as the basis of social and economic development of the whole state demand careful scientific research of the given financial and legal institute from the position of the legal and economic science, beginning with the definition of the concept of the budget.

By the economic nature, the budget is the system of monetary relations between the state on behalf of the competent authority, on the one hand, and physical and legal persons, on the other hand, arising in the process of formation and use of the centralized monetary fund. From the material point of view, it is the monetary fund making the financial basis of activity of authorities on behalf of the state. The basic requirements showed to the budget, its equation, completeness of reflection of incomes and charges, etc. In the legal aspect, the budget has the status of the law of the Russian Federation or the subject of the Russian Federation or the decision of the representative body of the municipal unit in which rights and duties of all participants of budgetary legal relations are determined; it is considered as the financial plan of the state or its separate territory. From the position of the right to property, means of the budget form the state or municipal treasury whose proprietor is the Russian Federation or its territory (instead of authority). Moreover, the budget is considered as the organizational plan, and as the source of information, and as the political act reflecting interests and struggle for them in the government and in the legislative authority.

Statutory official definition of the budget is fixed in the Budgetary Code of the Russian Federation. According to Article 6 of the code the budget is the form of formation and expenditure of fund of the monetary sources intended for financial maintenance of tasks and functions of the state and local self-management that predetermines the public - legal nature of the relations connected with the formation and execution of budgets, and the character of legal regulations, features of differentiation of the subjects of conducting and powers between the bodies of the government of the Russian Federation and bodies of the government of the subjects of the Russian Federation in financial - budgetary sphere.

The budget as the financial - legal institute is combined and many-sided; its significant role in social and economic development of the state predetermines the special scientific interest to the problem of regulation of budgetary legal relations.

The great value at investigation of the legal nature of the budget belongs to the legal positions of the Constitutional Court of the Russian Federation whose generalization gives the complex representation about the budget as the special instrument in realization of the state policy.

According to the Resolution of the Constitutional Court of the Russian Federation from June 17, 2004 No. 12-П, the budget of each territorial level as the instrument for realization of the financial policy of the state serves for distribution and redistribution of financial resources on the certain territory by means of which there happens the financial maintenance of public functions, and the budgetary relations act in this case as an essential element of social and economic development of the state and municipal units.

According to the legal position developed by the Constitutional Court of the Russian Federation in the Definition from February 2, 2006 No. 56-O, the federal budget, budgets of the subjects of the Russian Federation, local budgets and budgets of the state inappropriate funds in aggregate form the uniform budgetary system based on interaction of budgets of all levels through use of the regulating profitable sources, creation of target and regional budgetary funds, their partial redistribution for the purpose of financial maintenance of performance of tasks and functions of the state and local self-management, including in the sphere of social protection of citizens. Therefore independence of budgets of the subjects of the Russian Federation does not exclude their use for the purpose of maintenance of functions of the state on the whole and cannot be understood as independent, outside of determined by the Constitution of the Russian Federation and laws of the state policy and state functions drawing up of incomes and charges of the corresponding territory. Another would result in infringement of the constitutional guarantees of social protection of citizens (the Definition of the Constitutional Court of the Russian Federation from April 13, 2000 No. 43-O).

The budget of the subject of the Russian Federation or the local budget does not exist separately as they are the component of the financial system of the Russian Federation. Insufficiency of the own profitable sources at the level of the subjects of the Russian Federation or the municipal formations attracts necessity to carry out budgetary regulation for the purpose of equation of the corresponding budgets, that, in particular, is provided by means of rendering the financial aid from the federal budget to the budgets of the subjects of the Russian Federation.

Realizing the financial - legal regulation, determining the priority directions of the budgetary policy, the state proceeds from the recognition of the person, his rights and freedoms the supreme value and takes the duty to observe and protect rights and freedoms of a person and a citizen (Article 2 of the Constitution of the Russian Federation). The Russian Federation as the social state bears the duty on maintenance of guarantees of social protection of citizens (Article 7). On sense of Articles 71 and 72 of the Constitutions of the Russian Federation regulation and protection of rights and freedoms of a person and a citizen, financial regulation, the federal budget relate to conducting of the Russian Federation, and protection of rights and freedoms of a person and a citizen, social protection, including the social maintenance, - to joint conducting of the Russian Federation and its subjects. This implies that the responsibility for the state of affairs in the sphere of protection of the constitutional rights and freedoms of citizens is assigned both in the Russian Federation, and in each of its subjects.

At the same time, the federal legislator can, proceeding from recognized and protected by the Constitution of the Russian Federation purposes and values, make changes to earlier established rules concerning conditions of occurrence and realization of the given right (including by means of time regulation), in particular in connection with insufficiency of the budgetary funds. However, at entering similar changes there should be observed instructions of the Constitution of the Russian Federation which proceed that in the Russian Federation as the legal and social state should be observed realization of rights and freedoms of a person and a citizen, including social rights based on the principles of validity and equality, and requirements that in the Russian Federation the laws canceling or belittling the rights and freedoms of a person and a citizen should not be issued (Article 55, Part 2), and restriction of rights and freedoms of a person and a citizen by the federal law is supposed only in that measure in what it is necessary with a view of protection of the bases of constitutional system, morality, health care, the rights and legitimate interests of other persons, maintenance of defense of the country and safety of the state (Article 55, Part 3) [1].

Discussing the problems of insufficiency of budgetary appropriations (insufficient filling of budgets), it is necessary to mention rather actual and not less significant at present question of redistribution of account obligations between budgets of different levels of the budgetary system of the Russian Federation. In practice there is the problem of search of resources for financing of obligations transferred. For the purpose of maintenance of equation of the state financial system, the federal legislator, transferring account obligations on the subordinate level, including on maintenance of citizens with measures of social protection, it is not exempted from powers on their realization and continues to bear the responsibility for creation of necessary financial conditions for appropriate realization of the corresponding powers by the subjects of the Russian Federation, beforehand having determined in the federal legislation the degree of participation in the legal regulation of joint conducting on the given subject.

In the situation of limitation, insufficiency of budgetary funds of budgets when it is impossible to provide realization of the rights of citizens in full, the legislator possesses the power to limit rights (including property rights) of the same persons for the purpose of protection of rights and legitimate interests of others (Article 55, Part 3 of the Constitution of the Russian Federation). Such conclusion is made proceeding from the legal position made by the Constitutional Court of the Russian Federation in the Definition of the Constitutional Court of the Russian Federation from December 21, 2000 No. 261-O. As it is specified in the given decision, realization of the rights and legitimate interests of separate citizens should not render excessively negative influence on maintenance with budgetary funds of the rights and interests of all. It is especially actual in conditions of insufficiency of budgetary funds for the decision of many social problems connected with maintenance of such rights, as the right to life and dignity of the person. Therefore only in the form of the federal law there can be found balance between the rights and legitimate interests of the persons consisting in property relations with the state as creditors, and all other persons. Therefore any statutory-legal act adopted by authority, any legislative decision should be appreciated from the point of view of their financial and economic validity.

There are theoretical and practical questions firstly, whether realization of the rights of the citizens given by the system of the current legislation of the Russian Federation, can be put in dependence on filling of budgets, and secondly, whether the economic situation in the region can change so quickly after reforms carried out by the reforms in the state and with entering of essential changes into acts of the federal level.

According to item 5 Article 83 of the Budgetary Code of the Russian Federation, regulating the question of financing of the charges not stipulated by the budget in case legislative or other legal acts establish the budgetary obligations not stipulated by the law (decision) on the budget, the law (decision) on the budget is applied.

The given regulation has been disputed on its constitutionality by the Arbitration Court of the Republic of Karelia. Considering the question on the opportunity of admission of the application of the Court for consideration, the Constitutional Court has established, that the norm of item 5 Article 83 of the Budgetary Code of the Russian Federation cannot be considered as the excluding opportunity of realization of privileges and indemnifications which according to the adopted laws are given due to the means of the corresponding budgets. On the contrary, the given norm should be interpreted as obliging bodies of legislative (representative) authority to take into account corresponding charges at formation and adoption of federal, regional and local budgets [2].

Moreover, the blank in the legislative regulation, kept as a result of inactivity of legislative (representative) bodies of the government and representative bodies of local self-management for a long time, sufficient for its elimination, cannot serve as an absolute obstacle for the sanction of disputable questions if realization of rights and legitimate interests of citizens proceeding from the Constitution of the Russian Federation depends on it [3].

Analyzing separate regulations of federal laws on the federal budget, the Constitutional Court of the Russian Federation has formulated the legal position according to which the federal law on the federal budget creates appropriate financial conditions for realization of the norms fixed in other federal laws, issued up to its adoption and providing financial obligations of the state, that is supposing granting any means and material guarantees and the necessity of the corresponding charges as the federal budget should be based on the principles of equation, reliability and reality, and the Russian Federation as the legal social state cannot independently refuse performance of public - legal obligations taken. At the same time, the federal legislator has the right to suspend action of financial norms providing realization of rights and freedoms of the citizens only if there should be stipulated the appropriate mechanism of the corresponding compensation, forms and ways of which can change but the volume should not decrease [4].

Thus, according to the above mentioned, it follows that insufficiency of budgetary funds cannot serve the ground for restriction of constitutional rights of the citizens and only attracts necessity to carry out budgetary regulation for the purpose of equation of the corresponding budgets.

Budgets of all levels of the budgetary system of the Russian Federation are intended for material maintenance of functions of each public unit. In case of insufficiency of own means for covering of the corresponding charges the subjects of the Russian Federation can have the right to expect rendering of financial special-purpose aid by the Russian Federation [5].

The legislator, carrying out financial regulation according to the Constitution of the Russian Federation, should be guided by the priority of maintenance of rights and freedoms of a person and a citizen and should guarantee creation of appropriate financial conditions for their realization. Thus there is predetermined the public - legal character of regulation of budgetary relations acting as economic expression of the sovereignty of the state, of the material basis of realization of public functions and powers of the Russian Federation, the subjects of the Russian Federation and municipal units [6].

Problems of development and improvement of directions of financial policy both of the whole Russian state, and of its subjects make the subject of scientific researches of scientists working directly with the legal matter, and of scientists - economists. However it is necessary to note, that development of economic processes is inextricably related with legal maintenance of financial policy, and therefore research of problems of law is connected with studying of economic situation in the country on the whole and in its separate regions.

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