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 .
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 . 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 . 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 . O. Popov considers lawmaking acts to be court
precedents and decrees .
The variety of such opinions about the
results of lawmaking is possible to be considered from the point of broad and
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
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” .
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 .
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” .
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 .
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” .
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
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
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.
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Judicial law-making and judicial law. M, 2007;
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legal sciences thesis: 12.00.01 / Semyanov E.V. - M, 2005. - 193 pages.
5. Popov O. V.
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Table of contents: The Kazakh-American Free University Academic Journal №6 - 2014