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CONSTITUTIONAL LAW
V.I. Fadeev*
CONSTITUTION OF THE RUSSIAN FEDERATION: PROBLEMS OF DEVELOPMENT AND STABILITY
Abstract. The article deals with the essence of the modern Constitution, which is manifested in its values integrating social strata and groups of the population; their implementation and development should be the main objective of any social and political forces that came to power by constitutional means. Constitution is, figuratively speaking, the legal «clothing», in which the power in order not to lose its legitimacy, has to work for the benefit of the entire society, of the people, guided by the constitutional ideal of the due, basing on the sober perception of the things in existence. Special attention is drawn to two interrelated problems being solved by the Constitution: to ensure the inviolability of the basic principles and foundations of the State aimed on the progressive development of the state and public life and at the same time to meet the requirements of the society, evolve taking into account some changes in social and public practice. It is shown that the impact of the Constitution, protection of the constitutional values, their implementation and development in the presence of the Constitutional Court are provided more efficiently than in circumstances where the state legal system does not provide such a body. Importance and role of the Constitution protected by the Constitutional Court increase significantly in the society. The Constitution is perceived by citizens as «living», valid document able to protect their rights, and not simply as a declaration. In final decisions of the Constitutional Court constitutionally valuable ought, constitutional imperative are embodied, and they have an impact on law-making and law enforcement, strengthen and extend the system of guarantees of rights and freedoms of a man and a citizen.
Keywords: law, the Constitution, stability and development of the Constitution, essence, Lasalle, the Constitution of the Russian Federation of1993, the Constitutional Court of the Russian Federation, constitutionalization, the legal position of the Constitutional Court of the Russian Federation, legal consciousness, law and order.
n XX century in Russia the state system lamented twice: in 1917 the death of the monarchy was the collapse of Russia itself; in 1991, the collapse of the Soviet Union also meant the collapse of the Russian state. What was the basis for originating and development of these tragic events in the life of our nation and state? Why in 1917, as V. Rozanov wondered, «Russia faded in two days. The biggest — in three. Even the "New time" could not be closed as soon as Russia closed. It is incredible how it all scattered at once, down to the details, to the particulars... There is no emperorship, there is no Church left, there are no troops and there is no working class. What is left then? That's strange — literally nothing»1.
1 Rozanov V. Collected edition. Apocalypse of our time. M.,
2000. P. 6-7.
According to I. Ilyin, the main reason was that «Russia does not have enough strong and faithful monarchical sense of justice». It was staggered in all Russia. Leaving the Russian throne by the Emperor (Nicholas II, and then his brother Michael), not entering into a struggle for him, was, as I. Ilyin notes, had some psychological and moral grounds: it was preceded by the long and besides aggressive pressure of the revolutionary terror, first supported, then covered by the republican- minded part of intellectuals. Russian folk monarchism remained passive and did not give the Throne the living feeling of trust, support and unity. In such a situation, as inspired the Emperor generals of his military encirclement, his will, his determination could be a hindrance towards the national unity and salva-
© Fadeev V., 2014
* Fadeev Vladimir Ivanovich — JD, Professor, Head of the Department of Constitutional and Municipal Law, Moscow
State University named after OE legal Kutafin, honored Worker of Higher School of Russia.
9, Sadovaya-Kudrinskaya str., 123995, Moscow, Russia.
tion2. The coup took place in people's hearts, in their sense of justice, in their relation to the existing formation.
One of the reasons for the collapse of the USSR in 1991 was the loss of the national, state and sovereign self-consciousness of Soviet people, the recession and the crisis of the Soviet ideology which was the ideology of the state and, in fact, an integral part of the public and public administration. «Giant Soviet ideologists army without a fight capitulated. It just vanished, as if it did not exist at all».
In such situation, the revival and development of the Russian state was possible only by strengthening the national and state sense of justice, by sovereign construction, implementation by the multinational Russian people of their spiritual, moral and social ideals in the state and public life. It was necessary to return to their historical and national cultural roots, to rethink the whole experience of the state and public development in the Soviet period and , while not rejecting completely foreign experience of state and democratic construction, to determine constitutional way of the revival and development of the Russian statehood. It was needed to create a new fundamental legal basis which would guarantee the political stability of the political and public formation, law and order and legality in the country. What was like by that time the Constitution of the RSFSR of 1978, can be described with the words of Lassalle: «No flag after 100 battles can not be as tattered and punched as our constitution».
The starting point for a new Constitution was the adoption by the Congress of People Deputies of the Declaration of June 12, 1990 «On State Sovereignty of the RSFSR» in which the Congress expressed its determination to create a democratic legal State and develop a new constitution. As a basis to work on it had to be the Declaration of the State Sovereignty3, the adoption of which, on the one hand, was strengthening the political and legal position of the Russian authorities in their opposition to the USSR authorities, and on the other hand, was undermining the USSR national and state basis4.
Democracy comes «being belted with the storm» Carlyle said. This storm crushed The Soviet Union and plunged the RSFSR into the depths of turmoil. Therefore, the work on the project of the new constitution was implemented in the political, economic and legal crisis, with the confrontation of authorities, and turned into a war between two major projects of the constitution: parliamentary (defended by the people's deputies of the RF) and presidential (initiated by B. Yeltsin in spring of 1993). It was, in fact, a reflection of the emerging diarchy5, that affixed the country to the brink of the civil war6.
It was necessary to adopt a new Constitution as quickly as possible. Of course, it could not be written during one day but according to the memories of V. Zorkin «the delay in the introduction of the new Russian Constitution was not connected with the inability to create a high-quality legal document in the shortest terms, but with the political struggle. With the struggle of forces, clan groups. Struggle devoid of the fundamental and irreplaceable limiter — acute understanding of the value of the statehood as such by all the warring groups. In word all argued that they needed the state. But it was only in words but not in practice... Shortsightedness of Soviet conservatives, pathetic selfishness of regional barons, ruthless will of enemies of Russia — all worked together on the rejection of the new Constitution. Battles were fought for each line of this Constitution. Moreover, for every letter, every punctuation mark. The most obvious legal solutions were blocked. Nationwide interests drowned in the swamp of private corporate squabbles»7.
Creation of the new Constitution, especially during the disintegration of the state, weakening of the national unity of the people, should have been focused on the formation of the legal framework of state integration, unification of the Russian society. For these purposes, the Constitution had to secure the post-partisan, super group and post- ethnical foundations of social existence which would not cause the rejection and could not be questioned by the majority of the citizens of Russia, could not be
2 Ilyin I. Our task. Historical destiny and future of Russia. Articles of 1948-1954: in 2 volumes. Vol. 2. M., 1992. P. 88-89. «The genius willed flash of Stolypin — pointed I. Ilyin — was quickly extinguished with an effort of the extreme Right, who prepared him to resign, and the extreme Left who prepared to kill him (these lines crossed in the Bogrov security terrorism). After that — volitional paralysis became, apparently, fatal for the Right public currents, and from the extreme Left the willed fist was shranking».
3 Journal of the SND and the RSFSR Supreme Soviet. 1990. № 2. Art. 22 // Hereinafter the «Consultant Plus» Informational Legal System is used.
4 Evaluated estimate of the Declaration is given in the article of V. Kabyshev «Russia — a sovereign democratic state (for the 20th anniversary of the RSFSR Declaration of State Sovereign-ty)» // Russian Constitutional development. Interuniversity collection of scientific articles. № 11. Saratov, 2010. P. 6-13.
5 Shahrai S. About the Constitution. Society in the period of changes: the experience of constitutional development. M., 2013. P. 16.
6 Here's how one of the hierarchs of the Russian Orthodox Church characterized that time: «Russia is in the mist. It makes its way in the chaos of lies and confusion, draining its last force and going not knowing where — devoid of faith and sound historical memory, cheated by leaders, slandered by slanderers, surrounded by a ravenous crowd of applicants for its big centuries-old heritage. Russia is over the abyss. Devastated by the civil strife, vanity and acquisitiveness, choking in the grip of the economic crisis, international conflicts and political squabbles» (The Choice of Destiny. Problems of modern Russia through the eyes of Russian bishops. SPb., 1996 . P. 43-44).
7 Zorkin V.D. Constitutional and legal development of Russia. M., 2011. P. 32-33, 34.
the subject of irreconcilable confrontation of different public forces, social strata and groups. As fairly once wrote K. Hesse, «these basics must be isolated from the constant combat of groups and directions through the obligatory determination of both guiding principles, in accordance with which the political unity is formed and state problems should be observed, and the main features of given general legal order...The Constitution is designed to provide constant number of provisions considered as crucial, stabilizing and compensating»8.
Designers of the new Constitution began with capturing of the social values in the Basic Law; they meant principles that didn't raise any doubt from the warring parties9 and that were enshrined in Sec. 1 of the Constitution, as well as developed in Sec. 2 of the Constitution. The peculiarity of these chapters of the Constitution is their inviolability: it is possible to make any changes or perhaps revision only by adopting a new Constitution, complicated procedure which is established in Chap. 9 of the Constitution of the Russian Federation.
The Russian Constitution as the supreme form of the legitimation of state and power10 could be adopted in difficult conditions of the devastating radicalism of the opposing political forces only by people. Only multinational Russian people with the higher power of its constitutional and statutory authority could enforce the Constitution without giving rise to any doubts in legitimacy of its constitutive power based on the principle of the popular sovereignty. With the Ballot of December 12, 1993 on the draft Constitution of the Russian Federation, it drew a line under the Soviet period of the Russian State and cemented the fundamental political and legal basis of the constitutional Development of the Russian Federation: a democratic, federal, legal and social state; market economy; inalienable human rights and freedoms; separation of powers; parliamentarism; warranty of the local government; political and ideological diversity; recognition of the priority of International Law etc.
Thus, the Constitution incorporated a lot from what was produced by the West European constitutionalism, apprehended and cemented its values and ideas, many of which had been developed in due time, taking into account international experience of the theory of constitutional law of pre-revolutionary Russia (in particular, by A. Gradovsky, N. Lazarev, F. Kokoshkin etc.)11. Nevertheless, we must remember that the universalism of general
legal and democratic principles enshrined in the Constitution, does not mean at all that its perfect model created with the world's best constitutional experience, may be successfully implemented in any state, in any society striving to develop democratic foundations of their lives. The new fundamental law of the Russian Federation perceived external constitutional attributes of modern democratic organization of state and society, which it was necessary to implement in the Russian context. And they had nothing to do with the conditions of life and traditions of the Western democracy. The experience of borrowing of Western achievements in different spheres of public life and society is not new or unusual for Russia. It was in demand in the era of Peter I, and in subsequent periods of the development of the Russian state. However, the perception and use of Western constitutional and legal institutions, principles and ideas should not lead to the rejection of its own culture in the name of the western culture, should not become a means of destruction of cultural and historical identity type of the Russian people, evening out the diversity of civilizational basis of its social and public life12. Assessing the Russian Constitution, one should link its adoption by popular vote on December 12, 1993 with the results of the parliamentary election which took place on the same day: during the elections to the State Duma the majority of deputies were elected not from the parties, guided exclusively by the Western liberal ideals and values, but from the national and state parties and collectivist orientation. People thereby have constitutional path of further development of the state, taking into account its national historical and cultural traditions. And today this problem persists its relevance.
The Russian state after the period of tragic collapse of the Soviet Union was weakened, it lost many historical territories, it lost legal and also social and political ideals uniting the peoples of Russia, it received a new constitutional and legal design, new political and legal status of the people. But difficulties the State and society faced with on
8 Hesse K. Basics of German constitutional law. M., 1981. P. 31.
9 Shakhray S. Idem. P. 17.
10 As V. Zorkin notes, «it is the Constitution the supreme universal form of legitimation in Russia in its current limits» (Zorkin V. Idem. P. 18).
11 It's necessary to note that Russian Constitutional democracy
then fully embraced Western cultural philosophy and historioso-
phy (Alekseev N. Russian people and the state. M., 1998. P. 12-133).
12 From the time of Peter I the Western European influence became the biggest factor in our history. Peter I, in the belief that the entered institutions are enough to re educate people, that their inner convictions and beliefs are not important, suspected that there is a deep organic connection between agencies and internal life of the people. Russian liberals, supporters of the Western democracy, as well were united with the belief in the all-healing, educational power of human institutions. They rejected the idea of Dostoevsky who expressed it at Pushkin's jubilee that personal development is an essential condition for social perfection, whence it followed that there are no ideals, «which can be taken outside and successfully transplanted at any desired new location as a separate institution». A. Gradovsky objected: «Public perfection of people depends on the perfection of public institutions, bringing in a man, if not Christian then civil courage». In these words, as N. Alekseev noted, one of the basic rules of Russian Westernism is expressed (Alekseev N. Russian people and the state. M., 1998. P. 130-131).
the way to the constitutional development in those years are well illustrated in the words of the President of the Russian Federation V. Putin which he said in his annual address to the Federal Assembly in 2000: «In Russia there comes a period when the government acquires a moral right to demand the compliance of standards set by the state». Thus, in the 90s of last century the state was unable to provide not only its bodies to be bound by law, but also its citizens to be law-abiding. Along with the shadow economy there was formed a kind of shadow justice — citizens who have lost hope to achieve justice in courts, were looking for others, not legal, ways of solving their problems. This undermined confidence to the state, to the Constitution, to the law in general. «Disturbance of a State is always the disturbance of the state ethics». (K. Schmitt).
Practice of implementing of the Constitution in new Russia shows that it is not rejected by the society, that the process of the approval of constitutional values and principles in organization and operation of public authorities, life of the society, functioning of its institutions, legal consciousness of citizens goes successfully. The Constitutional Court of the Russian Federation plays its significant role. Every year averagely 15-16 thousands of citizens and their associations apply to the Constitutional court of Russia for protection of their constitutional rights. This is an evidence of the fact that the Constitution is closely connected with the reality, its norms strengthen law and order, contributing to the formation of an integrated constitutional and legal unity of the society and the state. It can be concluded that 20th anniversary of the Constitution showed that it fulfilled its main task in the concrete conditions of the historical reality: to lay the foundation of the state unity of the society and stable law and order, to stop the threat of the collapse of the RF on the model of the USSR. Namely during this period of constitutional development in order to enhance the credibility and strength of the Constitution as the supreme organization of the legal principle of public and social life, it was necessary to resist the temptation of supplementing the Constitution, amending it and even rewriting, as there were many contradictory events preceding the adoption of the Constitution and generating doubts on the legitimacy of authorities. There were a lot of proposals on this point. It cost two amendments in December, 200813. Summing up some results of the actions of these amendments, we can say that lengthening the time between election cycles from 4 and 5 years to 5 and 6 years (especially the presidential cycle — 6 years) in general gives a negative impact on the political life of the society. The rhythm of
political life disrupted threatening with stagnant condition. Authors of the amendment on the increase of the term of the Presidential office of the Russian Federation and the State Duma failed to realize that in the XXI century the pace of life is rapidly increasing, the political configuration of the society may suddenly and quickly change and a living link of the elected government with people in these conditions can be relaxed due to the lengthened office term of the elected authorities. Authorities should always keep abreast of the political life.
It seemed that the second amendment on annual reports of the Russian Government to the State Duma was to strengthen the constitutional and legal status of the RF government as the supreme executive body of the Russian Federation, weakening in some extent the monopolism of the president as a manager of the executive power. Parliament got an important additional lever to fight recklessly, corruption and incompetence in the executive power system. But parliament hasn't been able to use effectively this chance so far. Reports of the State government to the State Duma did not become a socially significant event: their respective legal and informational format hasn't been found. There are no significant changes in relations between the president, the government and the parliament.
A broad public debate must precede making amendment. It was necessary to lay the practice of its implementation in 2008, when the first amendments to the Constitution were introduced. But the swiftness of their consideration at all stages of the passage — in the parliament, in the subjects of the Russian Federation — once again demonstrated to the public that the people, the true guardian of the Constitution, was in fact eliminated from the process. Some authors argue for the implementation of the constitutional reform, offer radical overhaul of the system of public authorities' relationships and their competence14. The Constitution certainly should develop, the amendments should be made. However, careful and cautious approach is needed, because the Constitution, as the Chairman of the Constitutional Court V. Zorkin rightly emphasizes, is one of the major achievements of the post-Soviet era, and we must cherish it15. Another approach to the Constitution, which implies the need of its radical revision, significant changes of constitutional powers of the President, other governmental authorities does not strengthen the constitutional sense of justice of people, does not strengthen the commitment of state and municipal employees to service the Constitution. It generates illusory hopes
13 Russian laws on amendments to the Constitution of the Russian Federation. December 30, 2008. № 6-FKZ and of December 30, 2008. № 7 FKZ.
14 Kireev V. Theoretical problems of the reforming of RF Constitution. Chelyabinsk, 2008.
15 Zorkin V. Idem. P. 18.
that taking a new constitution, changing dramatically its content, we finally obtain a new better life, a new state apparatus, new civil society16. However the Constitution is not a self-sufficient legal mechanism capable to operate effectively for any internal social conditions and socio-economic and cultural background. In various conditions we can get different results of its implementation, sometimes directly opposite. The constitution RF helped to take our state, our people, our society from the great misfortune-national collapse and possible death. Centuries old tradition of sovereign statehood contributed to this. The bet on the strong presidential power played its role as well.
Meaning of the Constitution for the social life is determined not only by the fact that it is the basic law of the state, which «lies deeper than any other common law», which «should be the basis of all other laws ... is constantly felt in them, constantly appears». Its life force is hidden in the real balance of forces existing in the country. Constitution «is durable and has a value only when is it an exact reflection of the real ratio of social forces»17. This is how F. Lassalle defined the essence of the constitution, its value, in his paper «On the essence of the Constitution», with which he performed in Berlin in 1862. His views on the constitution were accepted by V. Lenin, who in his definition of the essence of Constitution emphasized the class struggle of social forces, and that was the interpretation they were placed in the basis of Marxist-Leninist theory of the constitution. Soviet constitutions, following this teaching, should reflect the different stages of the development of the Soviet state, registering and securing new ratio of class forces at each stage, representing the result of the distance traveled. Constitution is the «registration and legislative enforcement of what has already been achieved and won in fact» (Stalin). In this it differs from the program, which refers to what yet and what should be achieved and
16 Investigating the current structure of public authority in the Russian Federation, M. Krasnov comes to conclusion that it led to the formation of a «personalistic» political regime, which distorts, in his opinion, the principle of separation of powers and prevents normal political competition. At the same time such mode, proves M. Krasnov, is caused not by the Russian tradition, but by many organic constitutional defects of power mechanism driven by the Constitution of the Russian Federation. Such an approach to the identification of the main causes of the «personalistic» regime according to several authors , is inadequate for solving this problem due to the fact that the Russian society based on the principle of polinormalization, any social relations are governed by a set of different regulatory systems, with the legal norms that are far from being basic and exclusive (M. Krasnov. Personalistic regime in Russia: experience of the institutional analysis. M., 2006. P. 62). Weakness of the federal parliament in the separation of powers system, in its relationship with the President is caused not only by the constitutional and legal status. This reflects the strength of the Soviet tradition: weak Supreme Council and the Communist Party with its exclusive management of the society.
17 Lassalle F. Selected Works. M., 1920. P. 114, 135-137.
won in the future. However, adopting the latest Soviet constitutions (Constitution of the USSR in 1977 and the Constitution of the RSFSR in 1978) led to the recognition of the existence of some positions in the program of above mentioned constitutions. As L. Brezhnev noted speaking at a session of the Supreme Soviet of the USSR on October 4, 1977, a draft constitution, «enshrining the achieved...opens up the prospect of further development of the communist construction»18.
Modern view on the meaning of the Constitution in the society, its role in rationing of foundations in general legal regime of the state is not limited with the recognition of its stabilizing and streamlining functions connected with the organization and functioning of the public authorities, provision of the national unity, recognition and protection of human rights and freedoms of citizen. It must be based on the immutable principles and values, inherent for the social, economic and cultural life of the people, which do not allow losing their ethnical, cultural and spiritual identity. Besides the Constitution, as well as the political and social regime reinforced by it, must not only correspond people's position, stay in touch with its reality, its spiritual, cultural and national basics of public life, but also meet the needs of the development, promote achieving the constitutional objectives acting as a kind of project, structural plan of the state law development of the people within the legal framework of a democratic, social and federal state19.
Definition of essence of the Constitution as an expression of the relation of social (class) forces that became classic in the Soviet period can't help causing serious objections today: in such an approach to the Constitution the is a hidden thought of having inherently revolutionary changes of the fundamental legal basis of people's life in the interests of those political forces that come to power. «Constitutional question — Lassalle said — primarily and first of all — is a question of strength, not a question of law; actual constitution of the country is the actual balance of forces existing in the country». Thus, the Constitution, its content are firmly «anchored» to the reality, reflecting in fact only things in existence, without mentioning the proper things20.
18 Lenin V CPSU about the Soviet Constitution. M., 1979. P. 304.
19 In this case, as S. Shakhray fairly draws attention, the Constitution became not only a kind of a plan for the future of Russia, but at the same time a tool for its achievement. (S. Shakhray. Idem 19).
20 «The Constitution normatively doesn't proclaim a real condition of the state but its proper condition... The Constitution is
not a reflection of the reality, but the sample for it». (J. Izenzee.
State and constitution // State German law. Abridged translation of the German seven-volume edition. Vol. 1. M., 1994. P. 13). But it has to be a model, which takes into account the actual circumstances and corresponds to them, which is focused on the forces of the society supporting the state and capable to develop its constitutional system, to implement its constitutional ideal.
Any written constitution is considered as a piece of paper, to draw it is a side business, this can be done if necessary, in three days, and in the opinion of Lassalle, it's the latest of everything. The most important is to «convert real, actual balance of forces in the country» and «if in the society a victorious revolution occurred, then...there is a need for a new written constitution». Lassalle showed it in the example of the French Revolution of 1789. To reveal its true meaning, he refers to the famous pamphlet, which Abbe Sieyes published in 1788, a year before the French Revolution, and which is summarized in the following words: «What is the third class? Nothing! What should it be? — Everything!» True meaning of these issues and responses Lassalle expressed in the following words: «What is actually the third class, really? Everything! And what is it legally? Nothing»21. If the revolution of 1789, as Lassalle said in the 60-ies of XIX century, was a revolution of the third class, then this time already the fourth (working) class wishes to make its principle a ruling principle of the society and to soak with it all the public institutions — that class which in 1789 was still hiding in the depths of the third class. «In the depths of the fourth class —according to Lassalle — there is no embryo of new privileges, that's why it's equal to the entire human race. So its case is truly the case of all mankind, its freedom is the freedom of humanity itself, its dominance is the rule of all»22.
Concept of a constitution and democratic institutions doesn't remain unchanged: they evolve together with the state and society. And those conclusions that reflected the critical and generally correct assessment of the bourgeois democracy in Lassalle's works in XIX century, should be perceived in this century of postindustrial informational society taking into account the evolution of the state and law occurred, political and legal institutions of the democracy and civil society. In the reign of the idea of working class Lassalle saw the resolution of problems of the democratic development, implementation of objectives of the government, believing that a state with such an idea «voluntarily and quite consistently would commit something that up to now the state commits reluctantly, by small parts, under the pressure of circumstances, and that's why it would cause such a spiritual rise, this development of general happiness, education, welfare and freedom, an example we do not find in the whole world history, and in comparison with which even the most brilliant facts of former times would turn into pale shadow»23.
The future is hidden from us, «We can not predict how our words will resound... » Lassalle could not even predict what «the idea of rule by the working class» would lead to in Russia in 1917, where it will lead to the country and its people; at heavy cost of what disasters, shocks, tragedies and losses our people would «digest» the idea of the dictatorship of the proletariat and the poor peasantry and the practice of its implementation, would build a society of the developed socialism and would «break», driven by the advanced part of its revolutionary-minded intelligentsia to the democratic and political maelstrom of hopes and expectations, losing all that was produced during all the decades of its life under socialism. History, said Herzen, never fulfills our dreams as a whole. Most often it spoils, changes, distorts them.
The essence of a modern constitution is in its integrating, uniting social sections and groups of the population values, implementation and development of which should be the main task of any social and political forces, which came to power constitutionally. Constitution is figuratively speaking that legal «clothing», wearing which the authority, not to lose its legitimacy, has to work for the benefit of the society, of all the people, guided by the constitutional ideal of the proper thing and basing on the sober perception of actual things. Constitution is often defined as a system of values24, which creates problems of providing the inviolability of these values, determining their hierarchical pattern, as well as the limits of actualization with the development of the constitution, taking into account the historical and national traditions, ethical and legal principles and moral values. The system of value orientations of the Constitution extends its regulating effect on the whole state and social life, but at the same time it is not a «total charter»25, determining all parts of the state order. It is not identified with all the law and order26, it does not intended to be a definitive legal regulation: many social relations on the basis of constitutional standards should be specified by the legislator. Therefore, when making Constitution they define a range of issues that need to be solved exactly in its rules, as well as a list of issues that remain largely open for their solutions through other legal means. However, the margin of appreciation of their legal regulation are not unlimited: they are due to the letter and spirit of the Constitution. Its constantly acting force forms, supports and develops on the basis of constitutional principles and values of the rule of law in the society. The
21 Lassalle. Idem. P. 19.
22 Ibidem. P. 32.
23 Ibidem. P. 41. «That is the idea of the working class, that is its understanding of the state target; it as differs from the bourgeois understanding of the purpose of state as the principle of working class consisting of participation of all citizens in determin-
ing the will of the state or principle of universal suffrage differs from the corresponding bourgeois principle — the principle of qualification». (Lasalle).
24 Constitution of the XXI century: Comparative law research / Ed. V. Chirkin. M., 2011. P. 22, 26-31.
25 Hesse K. Basics German constitutional law. M., 1981. P. 29.
26 German State law: 2 v. M., 1994. Vol. 2. P. 309.
Constitution defines the orientation and the limits of legal regulation, establishes the forms and methods of resolving conflicts between state and society, citizens and state power, as well as between governmental authority within system of separation of powers and their interaction.
Implementing of Constitutional functions, constitutional practices pose the problems of combining stability of the Constitution with its development. It is intended, on the one hand, to ensure inviolability of the basic principles and the foundations of the state, which is necessary for progressive development of the state and public life. This problem is solved, as it is already noted, primarily through the secure of the inviolability of the provisions Chap. 1 («Foundations of Constitutional Order») and Chap. 2 («The rights and freedoms of man and citizen»), as well as special order of the revision of the Constitution and making amendments (Chapter 9). On the other hand, the Constitution should be continuously updated, to develop, to respond to the demands of the society. It should meet the needs of public and state practice. Constitutional order should not be apart from it, should not suppress, ignore, prohibit all that new that appears in life, that requires its constitutional interpretation. The need to develop constitutional standards is due to their brevity, some incompleteness, the possibility of different interpretations, different understanding of law enforcement practice27.
Development of the Constitution can be performed in different ways: first, by amendments to the text of the Constitution of the Russian Federation, when the interpretation of constitutional standards will not solve this problem. Secondly, without changes to the text of the Constitution. Some Russian authors basing on the views of Laband and El-linek believe that the best case scenario of the Constitution is its transformation without encroaching to the constitutional text28.
Development of the Constitution (without changing its text) is carried out by enacting laws and interpretation of the constitutional norms by the Constitutional Court. Provisions of the Constitution exert their regulatory impact both directly and through the laws specifying them. There are numerous examples of the adoption of laws which specify and in some extent develop the norms of the Constitution. It is primarily federal constitutional laws, the adoption of which is directly provided by the RF
27 This fact seems to complexify very much the development and introduction of the amendments to the Russian Constitution: their entry implies the highest level of the legal technique. The text of the Constitution is so, figuratively speaking, «compressed» that any withdrawal of any provision, any insert into it threaten to break the unity and systemacy of the constitutional text.
28 Mityukov M. On the best possible development of the Con-
stitution of the Russian Federation // Legislation of Russia in the XXI century. According to the materials of scientific and practi-
cal Conference. M., October 17, 2000. M., 2002. P. 17-29.
Constitution itself (e.g. «On the Commissioner for human rights of the Russian Federation»); federal laws, such as the Parliamentary investigation, etc. In the transition period, when there was an intensive updating of the legislation on the basis of the Constitution, there appeared some institutions having , in fact, constitutional value and which, however, are not even mentioned in the Constitution. These include: parliamentary investigation; deputies and parliamentary inquiries; constitutional responsibility of heads of RF subjects (in particular their dismissal by the Russian President in the event of loss of confidence) etc. All of this was reflected in laws, regulations of the Federal Chambers of the Parliament, the constitutionality of which is assessed by the Constitutional Court. The Constitutional Court, assessing the constitutionality of the legislation completes twofold task: provides stability of the fundamental constitutional norms and principles and at the same time their dynamism, updating due to the needs of social development. It should hinder the development of the society trends, conflicting with basic constitutional values, and at the same time maintain a positive trend of social development, finding in constitutional principles their justification and protection.
These functions Constitutional Court exercises using its powers of: the guardian of the Constitution and its values; official interpreter of the Constitution; final arbiter in disputes between public authorities, between citizens and power, conflicts of Russian legislation with international standards; constitutional body, acting as a «negative» legislator, orienting the legislator to implement the constitutional norms and principles. It should be noted that the Constitution, protection of the constitutional values, their implementation and development in the presence of the Constitutional Court are provided more efficiently than in circumstances where the legal system of the state does not provide such authority. The value and the role of the Constitution, which is protected by the Constitutional Court, substantially increased in the society. Constitution is perceived by citizens, figuratively speaking, as a «living» valid document able to protect their rights, and not just as a declaration. Updating and development of the Constitution is carried out by means of its interpretation by the Constitutional Court. Interpretation is understood as the overcoming of uncertain understanding of norms, normative identifying their genuine content in order to maintain the constitutional law and order. The Constitutional Court adopted 12 decisions on the interpretation of the Constitution, which referred to 23 Articles. All decisions on the interpretation of the Constitution were adopted in 1995-2000 i.e. in the initial period of its validity. The interpretation referred to the competence of the state government bodies, their organization and activities. The
Constitutional Court, refusing to pass the request for the interpretation of the Constitution, formulated a number of eligibility criteria of requests for the interpretation. Thus, in particular, it indicated that the applicant's request regarding specifying the provisions of the Constitution, in fact, requires that the Constitutional Court would create legal norms (the definition of June 16, 1995 № 67), that it can not substitute the legislator and create new legal rules instead of him (definition of December 26, 1996 № 106). Prolonged absence of appeals to the Constitutional Court on the interpretation of the Constitution is not means to achieve the harmony in the relationship between public authorities, the absence of any legal and political conflicts. It can be ample evidence of the conservation of political life, its stagnation, unwillingness or inability of participants of political and legal life to use Constitution to streamline the government, to overcome problematic situations, etc. At that the fact that there are conflicts in relations between public authorities, in the relationship between citizens and the state shouldn't be taken so negatively. Moreover, according to K. Hesse, «Conflicts are able to prevent the ossification, strengthening already frozen forms, they are almost the only driving force. No conflicts or their solution with force can lead to stable immobility of the existing things. It depends not only on the availability of conflicts, but also on how they are overcome and regulated»29.
Development of the Constitution by means of the Constitutional Court is achieved by broadening the constitutional framework in the overall system of law and order in the society, its constitutionalization. The Constitution thus remains unchanged, i.e. the Constitutional Court does not create new constitutional norms, and finds their true meaning, thanks to which there is an expansion of the constitutional space; this creates legal conditions for new, additional constitutional claims of law subjects30. Thus, the Constitution recognizes the right of citizens to file complaints to the Constitutional Court, the Federal Constitutional law on the Constitutional Court enshrines not only right of citizens but also rights of their associations to file the complaint to the Constitutional Court (Article 96). The legislator hasn't established what he understands in this case on the «association of citizens». The Constitutional Court chose the way of expansive interpretation of this concept — not only as a voluntary association, but as any organization of citizens and legal persons: voluntary and involuntary, private and public, and also local authorities as representatives of the municipal territorial collectives. Thus, the Constitutional Court recognized that broad
29 Hesse K. Idem. P. 22.
30 Zorkin V. Idem. P. 28.
enough range of subjects have a right to file complaints for the protection of the constitutional rights of their citizens. However, this practice causes some questions: whether the Constitutional Court replaces the legislator in this case, where is that boundary that separates its function from the functions of the legislator. Russian Constitutional Court in its decisions must exhibit a certain delicacy when it comes to its constitutional and legal status, the range of those subjects that have a right to refer to it, attracting attention of the legislator to the need for lawmaking regulation of data issues. In accordance with the Constitution, citizens have the right to file complaints to the Constitutional Court if their constitutional rights have been violated by the law. Firstly, the Constitutional Court in its decisions recognized the right of citizens to complain in case of violations of their rights by both federal laws (including federal constitutional laws) and laws of subjects of the Russian Federation. Secondly, it recognized that citizens can file complaints against the violation of their constitutional rights by presidential decrees. It is mostly about the normative decrees, which are adopted by the President in order to implement the primary legal regulation31. Third, it acknowledged the possibility of revising the constitutionality of decrees of the RF Government (regulations the adoption of which is directly assigned to it by federal law). In this case, the Constitutional Court solves the problem of the accordance of the Constitution both as a law itself, and as a decision of the Government, without implementation of which it is impossible to enforce the law (judgment of 27, January 2004. № 1-P). Fourth, it acknowledged that the decision of State Duma on the amnesty can also be appealed to the Constitutional Court, as it is a unique regulatory act which is of particular constitutional nature, and which can be equated to laws (judgment of July 5, 2001 № 11-P). It should be noted that citizens and their associations can apply only in the case when the law is implemented in a concrte case, and not in order of abstract normative control. Under the changes to the Federal Constitutional Law on the Constitutional Court that were adopted in 2010, the concrete case is only a case decided in court (Article 96 and paragraph 2 of Art. 97). The previous version of the Act gave citizens the opportunity to contact the the Constitutional Court, when the law was applied or had to be used in a particular case considered by the court or other public authority. However, this practice led to the emergence of conflicts in the judicial system. Therefore, practice of the Constitutional
31 Commentary to the Federal Constitutional Law «On the Constitutional Court of the Russian Federation» / Ed. by G. Ha-jiyev. M., 2012. P. 536.
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Court before making these changes to the law oriented citizens on a preliminary application first to other courts for seeking the protection of their rights32.
Development of the Constitution is directly connected with the development of the constitutional doctrine, provides the basis of the constitutional practice. The Constitutional Court plays an important role, as its decisions have a doctrinal character. Legal positions of the Constitutional Court are carriers of the doctrinal beginnings of the Constitutional Court decisions, they contain important common legal ideas and constitutional and legal conclusions and principles. These include the principle of the legal certainty; balance between the protected values; maintaining of confidence of citizens to the law and actions of the state etc. Thus, according to the legal position of the Constitutional Court the change of previously established rules by the legislator rendering the adverse effect on the legal status of the citizens should be executed so that the principle of maintaining of public confidence to the law and actions of the state would be honored. This also implies legal certainty, maintaining reasonable stability of the legal regulation, predictability of the legislative policy in social sphere and, if necessary, providing during a transition period the possibility to adapt to changes being introduced (judgment of 24 May 2001 № 8-P).
Constitutional Court basing on its own practice and practice of the European Court of Human Rights has developed a conceptual legal position regarding permissible restrictions on human rights and freedoms and civil rights in order to ensure public interests mentioned in Art. 55 of the Constitution of the Russian Federation. The Constitutional Court, in particular, recognized that legal restrictions may be justified if they: meet the requirements of fairness, they are appropriate, proportionate and necessary for the protection of constitutional values; they do not affect the very substance of the constitutional law and do not lead to loss of its real content. Besides, this rule establishing these limits should be formally defined and should avoid broad interpretation of the established limits (Resolution of May 14, 1999. Number 8-P, judgment of November 14, 2005 № 10-P, etc.).
Constitutional Court formulated also a number of conceptual legal positions that determine the development of federal relationship. Thus, it acknowledged that Russian Federation is a Constitutional Federation, and signing of the Federal contract in 1992 didn't turn it into a contractual federation. According to the decisions of the Constitutional Court, the Constitution does not permit any carrier of sovereignty in the Russian Federation and the source of power but the multinational people
32 Commentary to the Federal Constitutional Law «On the Constitutional Court of the Russian Federation». P. 17, 539.
of Russia. For this reason, presence of sovereignty in the republics of the Russian Federation and other subjects is excluded, even provided that their sovereignty would be recognized as limited (the decision of 7 June 2000 № 10-P). Constitutional principle of unity of the government requires that the subjects of the Russian Federation mainly base on the federal system of relations of executive and legislative powers (judgment of 18 January 1996). Thus, in the legal positions of the Constitutional Court legal fundamental structures, «unwritten» constitutional principles, which become vectors of legal development and political reforms, find their justification. Along with that the question arises: in what extent the Constitutional Court is «bound» by them, what is their legal force, what is their significance for making by the Constitutional Court decisions on constitutional disputes. Thus, the Constitution in fact, leaves open the question of the nature of the deputy mandate. The Constitutional Court in its decision of 12 April 2002 formulated the principle of free deputy mandate in relation to the status of deputies of federal parliament and regional parliaments, recognizing that the deputies are «bound only by the Constitution and by their conscience (so called principle of free mandate)». However, the Constitutional Court does not always consistently follow this principle in its decisions. Thus, in accordance with the federal law deputies elected in the candidates list which had been nominated by a political party in the elections, are required to enter into a fraction of this party in a legislative body. Exiting from the fraction means the loss of the parliamentary mandate. Once a deputy of a legislative body of a RF subject applied to the Constitutional Court. He had been deprived the deputy mandate for the fact that he had left the party and for that he had been expelled from its faction. The legislative body on this basis took a decision about early termination of the deputy's seat. The deputy went to court. The Supreme Court of the Russian Federation denied satisfying his complaints. The Constitutional Court found that in this case the courts of general jurisdiction gave unconstitutional meaning to the provisions of the law. By the way, that is how its another important function is manifested. It corrects enforcement practices, including judicial practice, identifying in accordance with the constitutional principles the constitutional and legal meaning of industrial and regional legislation standards by means of constitutional and legal interpretation, and this rules out any other interpretation in law enforcement. Considering the above mentioned case, the Constitutional Court first found that it is unacceptable to interpret disaffiliation from the fraction both as voluntary disaffiliation and as an expulsion from the fraction. Secondly, the balance between the principle of popular sovereignty and the principle of independency of the
parliamentarian, according to the Constitutional Court is reached within the existing legislation by the permission given to the deputy to quit the party on the list of which he was elected but at the same time with the prohibition to transfer to another faction and join another party (the decision of February 28, 2012 № 4-P). However, recognizing the principle of free parliamentary mandate the Constitutional Court seems to contradict the loss of parliamentary mandate due to the disaffiliation from the fraction of the party on the list of which he was elected. A deputy is people's representative in the Parliament, and not a representative of a party or faction. There is a quite logical position that the «exit or expulsion from the party or fraction and also transfer to another party or faction do not affect the mandate (however consequence of this is the loss of seats in parliamentary commissions)»33. In some cases the Constitutional Court updating or revising its legal position in the light of changing reality sometimes also puts into question some constitutional and legal principles formulated by it. So not always the practice of adjustments of legal positions of the Constitutional Court is perceived positively. For example, the President of German Federal Constitutional Court Fosskule, speaking in Kremlin to mark the 20th anniversary of Russia's Constitutional Court in October 2011, noted the position of the Constitutional Court on the abolition of gubernatorial elections directly by the people as a weakening of system of checks and balances34. In 1996 the Constitutional Court concluded that popular elections of senior officials in subjects of the Russian Federation are an adequate order to the Constitution. However, in 2005, when electoral law was changed, the Constitutional Court also recognized as constitutional the order of granting higher officials of the RF subjects powers with the participation of the President of the Russian Federation legislation bodies of subjects of the Russian Federation. The Constitutional Court explained its position so that the conclusion on the direct election of higher officials was made in view of actual legislation of that time; from the Constitution, that does not directly regulate this question, it doesn't follow that there can be set another order to empower higher officials of the RF subjects. According to V. Zorkin in this decision there was actually developed the concept of dynamic adjustments to legal positions of the Constitutional Court (judgment of January 18, 1996 and the decision of December 21, 2005). However, it is a doubtful that in justifying the change of its legal position the Constitutional Court follows the changing position of the legislator. Of
33 Hesse K. Idem. P. 288.
34 See: Constitutional Control: Doctrine and Practice: materials of International conference on 20th anniversary of the Constitutional Court of the Russian Federation (St. Petersburg,
28-29 October 2011) / ed. by V. Zorkin. M., 2012. P. 19.
course, the Constitutional Court must take into account the position of the legislator to understand the guiding motives in the moment of solving a particular issue. Nevertheless the Constitutional Court first and foremost must take its decisions basing on the letter and spirit of the Constitution, and not to seek the support in the current legislative acts by changing its legal position depending on the position of the legislator.
With its decisions the Constitutional Court influences on the legislator orienting him on the implementation of the constitutional principles and norms of the current legislation, on cosolidation of the constitutional and valuable order in the society. However, it doesn't let the legislator go beyond the constitutional law field, performing the function of so-called «negative legislator». One or the other act or legal provision recognized by the Court as not relevant to the Constitution become inoperative. The Constitutional Court has a right of the legislative initiative (implemented only once in 1994), the right to appeal to the Parliament with the message on the constitutional legitimacy, based on the results of its activities (implemented once in March 1993, even before the adoption of the Constitution of the Russian Federation in 1993). It seems appropriate to introduce the required presentation of such a message into the constitutional practice, at least every five years at a joint meeting of chambers of the federal parliament, attended by the President of the Russian Federation. Furthermore, the Constitutional Court gives legislator recommendations, sets a specific deadline for the legislator so that he settled this or that matter in accordance with the Constitution. Thus, in its decision of March 27, 2012 the Court pointed to the federal legislator that during 3- month period he was subject to establish an order of the official publication of the International treaties that are applied provisionally and provide other rules than the federal law. These regulations affect rights and freedoms of man and citizen. After this period, all such agreements can't be applied if they are not officially published. It seems necessary that the legislator (State Duma) considered annually the question of implementation of the recommendations contained in the decisions of the Constitutional Court so that the latter in its messages on the constitutional legitimacy would also pay attention to this matter.
The Constitutional Court in its decisions specifies the content of the constitutional and legal powers of state bodies, of their relationship. So, it admitted the right of the President to issue so-called outstripping the law decrees («legislative» decrees). When the President of the Russian Federation began publishing decrees, which have, in fact, the force of law, their constitutionality was put into question by the Parliament. The Constitutional Court recognized the validity of the principle
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of decrees on the basis of the need for accelerated changes in the society, but only to the extent that they comply with the Constitution, and only in those range in which they were needed to fill the gaps in the legislation pending the adoption of the law. With the adoption of the relevant law the data decrees become void. Furthermore, it should also be taken into account that «itself attribution of an issue to the jurisdiction of the Russian Federation (Article 71 of the Constitution) does not mean inability to resolve it by means of other, apart from the law, regulations, except when the RF Constitution itself excludes this, demanding a federal constitutional decision or federal law for the solution of a specific issue»35 (judgment of 27 January 1999 № 2-P). In recent years, such orders are practically not published.
It's necessary to specify the historical tradition of publications of such decrees by the head of state. Prerevolutionary legislation (Article 87 of the Fundamental Laws of the Russian Empire) established the right of the Emperor to publish so-called legislative decrees, i.e. decrees on matters requiring adoption of laws. However, this article gave, first, the right to issue decrees only in the period when the State Duma didn't work. Secondly, when Duma began to work again a decree had to be introduced to the State Duma as a bill within 2 months. If the corresponding Minister did not do it or the Chambers didn't pass the legislation, the legislative decree was losing its force. This procedure is illustrative not only of Russia, it was used then in other countries (Austria, Denmark, Prussia etc.). In the Soviet period for the Presidium of the Supreme Council there was recognized the right to issue legislative decrees between sessions of the Supreme Soviet. These decrees were approved at the next session of the Supreme Council and they acquired the force of law. Practice of issuing legislative decrees in the prerevolutionary period can also be used for legal enshrining of conditions and issuing order for appropriate Decrees of the RF President.
Legal validity of the outcome of the Constitutional Court exceeds the legal virtue of any law and
35 In this connection it seems that the edition of the Presidential Decree of 30, December 2000 № 2110, in which the text of the National Anthem of the Russian Federation was approved, is not relevant to the specified decision of the Constitutional Court of the Russian Federation. Yes, the President of the Russian Federation in the publication referred to the Decree on the Federal Constitutional Law of December 25, 2000 № 3 ERPs, in which there had been approved only musical version of the State Anthem of the Russian Federation, but there had not been approved the text of the anthem. The RF President seemed to filled in the gap in the legislation. But this might not have sufficient grounds for the publication of its Decree on the National Anthem. The Federal constitutional law of March 22, 2001 № 2-FKZ amended the Federal Constitutional Act of December 25, 2000 № 3 FCL and approved the text of the anthem. Presidential Decree on the text of the anthem lost its force.
is practically equal to the legal force of the Constitution itself36. It can not be used in isolation from final decisions of the Constitutional Court. It can be stated that as a result of the activity of the Constitutional Court the Constitution represents the unity of its text with the decisions of the Constitutional Court, which develop and actualize its contents. Does the Constitutional Court fulfill a lawmaking function? Practice of the Constitutional Court gives some authors basis for a conclusion that the decisions of the Constitutional Court, in fact, have regulatory force, and as such become precedential value (but the Constitutional the Court does not create new legal standards along with the law or instead of the law)37. Others go further in their conclusions, believing that the Constitutional Court «forms a special kind of normative principles, constitutional and judicial norm settings that unlike ordinary legal rules do not possess, for example, the conventional structural elements (hypothesis, disposition, sanction) and some other formal legal signs of a legal rule coming from the legislative body»38. Nature of the Constitutional Court is much richer and deeper in its contents and functions, rather than the nature of the case regulation. It can not be reduced to the question of their normativity content. In the final decisions of the Constitutional Court it is embodied the constitutionally valuable ought, constitutional imperative that impact on law-making and law enforcement, strengthen and expand the system of rights and freedoms guarantees of man and citizen. Thereby the Constitutional Court decisions are considered as elements of the constitutional order, which represents an ideal normative ought in a legal constitutional state. Adoption of the Constitutional Court decisions is a legal fact generating general or specific constitutional relations. Constitutional principles enunciated in them acquire the constitutional and legal basis of their being in common constitutional relations, providing governing regulatory impact on subjects of the constitutional law, predetermining their constitutionally grounded legal claims and legal duties. Constitutional Court decisions are also normative premises and goals for concrete actions and decisions made by the related subjects of constitutional relations which are subject to the decision of the Constitutional Court. The Constitutional Court decisions can be seen as a way of updating and development of constitutional values. The Constitution is a sphere of all valuable, and decisions of the Constitutional Court carry the constitutional content in which valuable constitutional principles are embodied or recorded. Thanks to decisions of the Constitutional Court the hierarchy of
36 Vitruk N. Constitutional justice. Judicial and Constitutional law and procedure. M., 2005. P. 119, 124.
37 Zorkin V. Idem. P. 153.
38 Cooper N. Judicial Constitutionalism in Russia. M., 2011. P. 122.
constitutional values is built, their ratio and balance is set, new aspects of the content of constitutional norms, principles and values are disclosed.
The Constitution must not only develop with the people, follow it, passing with it varying degrees of its state-legal growth, without losing constitutional being, but also serve as a guide for the people to move to the constitutional and legal ideal of state and society. Its implementation requires substantial efforts not only of the state apparatus in general, but also of the society that gives the Constitution its real life, effective force and strong support for the subjugation of all state activities for the interests of people, retention of the public power
References:
apparatus in the range defined by the Constitution. However, it also acts, figuratively speaking, as bridle for the power, no matter in whose hands power is. This requires not only the availability of state legal means to ensure the functions of the Constitution, especially in the face of the RF Constitutional Court, deep legal traditions, proper legal awareness of the people, but also public protection of the Constitution, embodied in the perception of it by citizens and their associations and organizations as social, public and cultural legal values. Therefore, our country had better enter a tradition: to hand the deluxe edition of the Constitution of the Russian Federation to the graduates of secondary schools.
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Перевод И.А. Мартыненко, преп. кафедры англ. яз. № 2 Университета имени О.Е. Кутафина (МГЮА)
