Quasilawmaking of the constitutional court of the Russian Federation at official interpretation of the Constitution of the Russian Federation

Table of contents: The Kazakh-American Free University Academic Journal №6 - 2014

Author: Ostapovich Igor, Gorno-Altaisk State University, Russia

With adoption of the Constitution of the Russian Federation in 1993 forming democratic society and the constitutional state the Russian Federation chose the novelistic Roman-German legal system. In this regard now at the legislative level the decisions of the courts aren't the source of law. At the same, time the Constitutional Court of the Russian Federation, providing an official interpretation of the Constitution of the Russian Federation and revealing legal gaps, repairs these gaps and thus forms new rules of behavior. Such rules of behavior in legal practice gain characteristic features of an independent source of the law.

Peculiarities of lawmaking and its outcomes are discussed in foreign and Russian scientific literature by O. Vereshchagin, P. Guk, M. Marchenko, O. Popov, E. Semyanov, S. Cherednichenko and others [1]. At the same time the matter of legal nature of the judicial acts particularly of judicial statutory and regulatory authority and regulatory legal act being a result of lawmaking still remains underexplored.

According to O. Vereshchagin, the forms of lawmaking are judicial precedents, the rules of the courts, interpretations of the higher courts, court practices [2]. According to S. Cherednichenko the results of lawmaking include judicial precedents, interpretation acts of the court practice, act of standard interpretation, interpretations of the plenums of the highest courts, legal limitation acts [3]. According to E. Semyanov the outcomes of lawmaking are the legal acts, acts of standard interpretation, interpretations of the plenums of the higher courts, legal limitation acts, quasi-precedent legal acts [4]. O. Popov considers lawmaking acts to be court precedents and decrees [5].

The variety of such opinions about the results of lawmaking is possible to be considered from the point of broad and narrow approach.

According to the representatives of the broad approach in some cases the results of lawmaking include legal phenomena not completely corresponding to them by nature (law interpretation acts, legal discretion) and in the other cases legal phenomena corresponding to the results of the lawmaking only in their certain parts (court practice, legal precedent).

The notion of “lawmaking act” is entailed into the notion of the “court lawmaking acts” and general features of the lawmaking acts are peculiar to the court lawmaking acts. At the same time they possess specific type features.

The general character of the law-making acts shall be fixed in legislation. For example obligation of the court decrees of the corresponding courts results from the legislation of such legal frameworks of civil law as in Albania, Andorra, Bulgaria, Greece, Estonia, Spain, Italy, Macedonia, Germany, Poland, Portugal, Romania, Slovenia, Croatia, Czech Republic etc. Thus, according to Article 119 of the Constitution of Portugal the official paper “Daily newspaper of the Republic” announces in particular the decisions of the Constitutional Court as well as the other courts being universally binding under the law. Under Article 145 of the Romanian Constitution the decisions of the Constitutional Court are obligatory and shall be published in “Monitorul Oficial al Romaniei” [6].

Regulatory-legal content of the lawmaking acts consists in them having general rules of behavior that cover unlimited number of participants and not limit the action by the fact of their implementation.

At the same time certain peculiarities of court lawmaking acts are possible to be revealed with the help of the analysis of their form, content and structure. Court lawmaking acts may acquire the form of a court regulatory legal precedent and a court regulatory legal act.

Court regulatory legal precedents are the results of the court lawmaking fixing legislative mandates. In judicial literature the court precedents containing the rules of understanding of the legislative mandates being the results of the court activity are called judicial precedents [7].

Court regulatory legal precedent along with the general features of the law-making act has the following characteristics: it is adopted in the legislative form of action i.e. in the judicial proceedings, it has casual character at the same time containing legislative and individual mandates, has complex structure, influencing further analogous actions. Consequently the court regulatory-legal precedents are the court decrees by certain case announced in official papers, containing legislative mandate, which have general character and cover further analogous cases.

Court regulatory-legal acts are written legal acts containing legislative mandates on organization and order of activity of the corresponding court authorities. For example, UNO International Court, European Union Court, European Court of Human Rights, majority of courts of general and constitutional jurisdictions as well as their structural subdivisions functioning on the basis of the rules adopted by them.

Thus, in 2006 European Court of Human Rights adopted the Rules containing legislative mandates on organization and operation of the court as well as its proceedings. Besides, under Article 148 of the Federal Constitutional Law of Austria detailed provisions on organization and proceedings of the constitutional court are regulated by the Rules adopted by the constitutional court on the basis of the federal law. According to Article 127 of the Constitution of Croatia “internal organization of the Constitution court of Croatia is regulated by its Rules” [8].

The examples of court regulatory legal acts in Russia may be the Rules of the Constitutional Court, Rules of the Plenum of the Supreme Court, provisions on scientific-consulting councils at highest court institutions etc.

Thus, the Preamble to the Rules of the Constitutional Court establishes the order of election and appointment of its corresponding authorities and persons; authorities and order of meetings of its structural subdivisions; the order of preparation of the materials by the constitutional submission and constitution applications; the order of case proceeding and other matters of internal activity of the Constitutional Court thus, containing legislative mandates of internal regulatory action.

Court regulatory legal acts mentioned above mainly establish internal rules of the activity of the corresponding court authorities and are as a rule adopted in the form of Rules and thus they may be called court regulatory acts.

As documentary form of lawmaking act envisages corresponding structuring of its text, conforming to the rules of legal technology: logistic, grammar and stylistic the court lawmaking acts shall have specific requirements to their form and content. These aspects of the court lawmaking acts need further research.

According to the results of the analysis based on the general theoretic construction of the lawmaking act the court lawmaking acts may include court regulatory legal precedent and court regulatory legal act being the results of the judicial legislation. It is important that they are distinguished from the other court acts not containing legislative mandates and are not of general obligatory character. The other significant fact is the formation of the technology of adoption of the lawmaking acts and its legislative fixation.

Thus, we really shall agree with the fact that interpretation is specific legal analysis envisaging the number of complex sequential stages and actions. Only highly qualified lawyers and legal scientists will be able to adequately and qualitatively solve such problem. This doesn’t mean that interpretation is not provided by other subjects (state authorities, citizens) and only Constitutional Court adopts such acts obligatory for all. It is the obligatory feature and its application is guaranteed by the official enforcement that differs the official interpretation from the other types of interpretation. This differs the Constitutional Court from the general jurisdiction courts, the other bodies of state authority that in their activity may act in accordance with short-time interests or make decisions under the influence of different powers. The official interpretation of the Constitution of the Russian Federation and the laws of the Russian Federation is related to the necessity of specification and development of the content of certain provisions in the case of revealing gaps and unclearly established norms. These authorities are envisaged by the legal nature of the constitutional justice. The effective constitutional control would be impossible without revealing the real essence of the constitutional norm that shall conform to the disputed legal act. Official interpretation of law is the highest level of interpretation performed by the authority for which this function is primary, not secondary characterizes the essence of its activity.

Legal literature contains different opinions on specificity of interpretation. Thus, A.A. Lebedev notes that peculiarity of interpretation in the sphere of court constitution control is in its prevailing law-making character [9].

S.A. Avakyan states: “Interpretation shall be provided within the limits written and fixed in the constitution. But the matter is that what is written is either not understood at all or it is possible to develop several ways of its realization. Then the interpretation becomes not just the interpretation but rather a creation of a new legal norm” [10].

This approach is opposed by V.Y. Solovyev as due to this approach there is a possibility of changing the legal norm through its interpretation which in its turn becomes an act of direct lawmaking [11].

To solve this problem it is necessary to accept the decision of the Constitution Court as a precedent in specific cases on interpretation of constitution and laws. But the court precedent as a source of law is characteristic for common law and foreign for civil law. However, it is impossible to ignore the presence of general trend for harmonization of different legal systems.

Due to the defects of certain provisions of the laws caused in particular by the wrong grammatical expressions and some logical-grammar mistakes it is necessary to apply logical, teleological and grammatical methods of interpretation. In this case it is necessary to consider the fact that both separate provisions of the fundamental law and constitutional institutions are the part of integral legal control and perform their functions which in their turn shall conform to the legal nature of the constitution itself. The results obtained in the process of concretization of certain constitutional norm shall not contradict to the content of the other constitutional norms or to the Constitution in general as well as to its fundamental parts.

Consequently during the interpretation of the constitutional norms the court shall not consider only their literary content but also consider their place in the legal system, peculiarities of their realization because all the elements are interrelated and play their roles within the whole system. Besides, interpretation of the constitution and other laws shall be objective, unprejudiced and qualified as the content of the constitutional norm may less be changed by interpretation creating the other norm by its essence resulting in appearance of new legal relationships.

REFERENCES

1. Marchenko M. N. Judicial law-making and judicial law. M, 2007;

2. Vereshchagin A.N., Judicial law-making in Russia. Comparative and legal aspects / - M.: International relations, 2004. - 344 pp.

3. Cherednichenko S. P., Judicial law-making: comparative and legal research:

Candidate of legal sciences thesis: 12.00.01 / Cherednichenko S. P. - Moscow, 2005. - 203 pages.

4. Semyanov E. V. Judicial law-making (questions of the general theory of the law): Candidate of legal sciences thesis: 12.00.01 / Semyanov E.V. - M, 2005. - 193 pages.

5. Popov O. V. Theoretical and legal issues of judicial law-making in the Russian Federation: Candidate of legal sciences thesis: 12.00.01 / Popov O. V. - Tolyatti, 2004. - 221 pages.

6. Arnold R. Different Levels of Constitutional Law in Europe and Their Interdependence// Challenges of Multi-level Constitutionalism/ Nergelius J., Policastro P., Urata K., ed. - Cracow: Polpress Publishing, 2004. - 451p.

7. Zagaynova S. K. Judicial precedent: law application problems / S. K. Zagaynova. - M.: Norma publishing house, 2002. - 159 pages.

8. Mancini F. From CILFIT to ERT: The Constitutional Challenge Facing the European Court/F. Mancini, D. Keeling//Yearbook of European Law. - 1991. - Vol. 11. - P. 1 - 77.

9. Lebedev V.A. Constitutional and legal protection and protection of the rights and freedoms of citizens in Russia (the theory and practice of the present day). – M.: Moscow University Publishing house, 2005.

10. Avakyan S. A. Constitution of Russia: nature, evolution, present: 2nd edition – M.: RYuID, "Sashko", 2000. p.206.

11. Solovyov V.Y. Jurisprudence in the Russian legal system: thesis abstract: specialty code 12.00.01 "Theory and history of state and law; history of political and legal doctrines" / V. Y. Solovyov. - M, 2004. - 21 pages.



Table of contents: The Kazakh-American Free University Academic Journal №6 - 2014

  
Main
About journal
About KAFU
News
FAQ

   © 2017 - KAFU Academic Journal