Тристан Д А _Summery (1138904), страница 3
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In this case, each specific situationrequires determination as to whether and to what extent a given right relates to a group(a group type), and the leading role in this process is held by the Constitutional Court.The common criterion for the rights and freedoms exercised by individuals only is thattheir essence is closely related to physical and mental features of the human person, 11which are attributable to a citizen group being an object constructed under regulations.According to the scope of groups entitled to exercise the respective rights, thefollowing classification applies: constitutional rights that apply to all groups in full (e.g.the right to access to justice); constitutional rights with the scope of applicability beingdependent on the group type (e.g.
the right to conduct business); constitutional rightsexercised by an individual group type only (e.g. the right to participate in elections ofgovernment authorities).4. Examination and assessment of the practice employed by the ConstitutionalCourt have allowed identification of the trend to constitutionalize the branch rights andfreedoms of groups, i.e. give them a constitutional status that implies admissibility toconstitutional judicial protection. In this respect, it is recommended to rely on theassumption that the Court can give constitutional weight to a branch right only when itis obvious that the right originates from constitutional provisions, and the necessity toprotect the same in constitutional justice is conditioned upon the fact that the legalcontrol over the right will disproportionally limit or even impair the fundamental rights,freedoms and constitutional principles, as set forth in the Constitution of the RussianFederation.
Such an approach allows avoiding an overuse of the mechanism aimed atconstitutionalizing rights and freedoms in constitutional justice.5. A conclusion has been made that the approach used in judgments of theConstitutional Court of Russia and explanations of the Supreme Court of Russia withrespect to distribution of compliance assessment powers among courts, which impliescomplete exclusion of the courts of general jurisdiction from the activities to giveconstitutional (statutory) nature to regional laws and municipal regulations in the federalsubjects of the Russian Federation with functioning constitutional tribunals, leads to asignificant deviation from the equality of access of citizens and citizen groups to justice.In this context, as a provisional measure, it is proposed to recognize the power of thecourts of general jurisdiction to control compliance of the regulations with theconstitution (statute) of a federal subject of the Russian Federation also when the federalsubject has a constitutional (statutory) court, if the competence of the latter is limited incomparison with the competence of the courts of general jurisdiction in the federal 12subjects of the Russian Federation, which have no constitutional (statutory) courts.
Inthis case the powers held by the courts of general jurisdiction should be determinedresidually subject to their own competence, as provided in the Code of AdministrativeCourt Procedure of the Russian Federation, which will exclude the scope of matters theadministration of which is vested in the regional constitutional court.6.
A conflict between legal views of the Constitutional Court in definition of theconstitutional legal content of the “citizen group” term, as provided in Article 96 of theLaw on Constitutional Court, has been found. The conflict is that the Court has limitedthe scope to voluntary groups formed by implementation of the constitutional freedomof association, on the one side, and seeks to extend this scope to the maximum extent,on the other side, by using the category of the groups to recognize the right to aconstitutional complaint in relation to entities other than voluntary citizen groups.Inclusion of such entities as government and municipal enterprises and institutions,legal entities with a sole shareholder, bar and notary chambers, municipalities (localcommunities), federal subjects of the Russian Federation by the Constitutional Court incitizen groups holding the right to a constitutional complaint is in conflict with its ownlegal views.
At the same time, the author thinks that the expansion of the scope ofinitiators of specific constitutional compliance assessment is a positive trend, which,however, should be formalized at the legislative level not only to legalize the practiceemployed by the Constitutional Court and mitigate the existing conflicts in its legalviews, but also to stabilize the respective legal relations and provide legal certainty tothis issue. When the respective amendments are made, apart from consideration of theestablished practice employed by the Constitutional Court to expand the scope of partiesholding the right to file complaints, the Court should be targeted at further developmentof this approach subject to the necessity to provide all holders of the fundamental rightsand freedoms with access to constitutional justice.7.
The practice employed by the Constitutional Court has been found inconsistentas to the parties directly entitled to file a complaint to protect the fundamental rights ofthe groups, and as to whose fundamental rights and freedoms may be asserted in theCourt by a citizen group. In some cases the Court admits complaints filed by 13participants to protect the rights of their group, in others it does not without anysubstantiation why directly opposite approaches are applied. A similar inconsistency hasbeen found as to the right to file a complaint to protect the members of a group. In thisrespect, it is proposed to formalize in the law the right of the participants of a group tofile a complaint with the Court to protect the rights of their group, as their compliantdoes not prejudice interests of the other participants and the group as a whole.
This rightis especially relevant in situations when the will of individual participants does notallow them to have sufficient influence on the group’s decision whether to file acomplaint with the Constitutional Court. The right held by noncommercial groups to filea complaint with the Court to protect the rights of their members should also beformalized, as this is their primary objective in the majority of cases.Another defect of the institution of constitutional judicial protection to be correctedat the legislative level identified by the author is no right held by some noncommercialorganizations (e.g.
communities of small-numbered peoples, trade unions, consumersocieties) to file a complaint to protect the constitutional rights of non-memberindividuals if protection of the rights of such individual categories of citizens is astatutory objective of such group in accordance with the law.8. Implementation of a citizen group’s right to a constitutional complaint has beenproven to be not contingent on the availability of the status of a legal entity. Otherwise,it would lead a fictitious possibility of creation and operation of such a group, if theright was not provided with judicial protection. The above fact also means thatdissolution of a group cannot preclude protection of its fundamental rights through aconstitutional complaint when the legal provisions pursuant to which the group has beendissolved are called into question.
A dissolved group may, at the same time, contestboth the regulations that have served as a legal basis for dissolution thereof, and otherregulations that violate the rights of the dissolved group. In other situations a dissolvedgroup will not have the right to a constitutional complaint following the loss of its legalpersonality, as investigation of a complaint filed by such a group will not be able toattain its basic purpose, i.e.
restoration of the violated rights. In addition to the above,protection of the fundamental rights of a wrongfully dissolved group may be applied for 14both by an individual who performed the function of the executive body of the group(legal representative) at the time of dissolution, and members (participants) of thegroup, as wrongful dissolution is clearly an intervention into implementation of theirconstitutional freedom of association.9. The research has found that notwithstanding that the laws provide no specialcontrol over procedural succession in a constitutional proceeding, the ConstitutionalCourt reasonably acknowledges the possibility to resume investigation of a complaintfiled by a reorganized citizen group.
In this case, all the procedural rights of the originalcomplainant will be transferred to the successor of the reorganized entity.10. Assessing the practice of investigating specific complaints filed by groups, theauthor claims that the activities of the Constitutional Court to protect their constitutionalright to judicial protection, economic and cultural rights and freedoms, right to localself-government, and constitutional guarantees related to public liability of groups arequite effective. At the same time, protection of the fundamental rights of the groups bythe Court is not always efficient, especially in situations when the constitutional natureof the limitation of rights and freedoms in the political sphere is checked, when theConstitutional Court allows disproportional limitation of the constitutional rights andfreedoms held by groups with a view to protect interests that are not connected by theConstitution with the legitimacy of limitations and withdrawals; admits the use ofevaluative constructions and other concepts as criteria for limitation of the fundamentalrights held by groups that promote extensive interpretation and inadequate perception ofthe criteria, and thus a misuse thereof by government authorities; reasons its view on theadmissibility and proportionality of the limitations of the fundamental rights held bygroups by unfounded assertions; justifies excessive intervention in the groups’ freedomof activity by historical traditions and the necessity of balance between the values andinterests protected by the Constitution that are not actually in conflict with each other inthe context of limitations to be imposed; does not preclude emergence of unlawfulinstitutions that impair the fundamental rights held by groups.The theoretical and practical relevance of the thesis research is that it attemptsto explain multiple fundamental issues of the groups’ constitutional status and 15protection of their fundamental rights and freedoms using constitutional justicemechanisms.
The conclusions drawn by the author of the thesis contribute to thescientific discussion on the issues of constitutional judicial protection of the rights andfreedoms held by groups and encourage further research of the above issues. At thesame time, the author offers new general areas and specific steps for reforming thedomestic constitutional justice.The results of the thesis research and the suggestions provided in the work can beused in compliance assessment and law enforcement activities targeted at improving thelaws on constitutional justice and the justice administration practice.
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