Тристан Д А _Summery (1138904), страница 5

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These classifications provide bothsystemic approach to capacities in question and explain to which extent they areavailable to various subjects exercising the freedom of association, as well as which ofthose capacities require or not require an active action.The third paragraph “The Concept, Elements and Types of Citizen Groups”of the first chapter provides review of legal constitutional elements which must be metby a citizen group established in accordance with Article 30 of the Russian Constitution.This paragraph also contains an author’s definition of the term “citizen group” andclassification of citizen groups based on variety of grounds.The established specific elements of citizen groups are 1) voluntary nature; 2)association of at least two persons; 3) common goals and interests; 4) formalorganization (organizational integrity); and 5) lawfulness of establishment and activity.These elements provide ground to conclude that professional associations withobligatory membership such as notary and bar associations, self-regulatingorganizations etc.

or entities founded exclusively by public organizations such as stateor municipal unitary enterprises and so forth, territorial entities under public law such asmunicipalities or other constitutional entities of the Russian Federation, or singlemember legal entities, or communities without formal organization do not originatefrom the implementation of freedom of association as not meeting all of the abovecriteria.

Based on this inference, the author reviews consistence and justifiability ofapproaches of the Constitutional Court to selection of the range of citizen groupsentitled to file constitutional complaints.The classifications of citizen groups offered in the thesis help to identify thespecific features characterizing certain types of citizen groups. The author is however ofthe opinion that the constitutional freedom of association may be exercised by anyvoluntary group with wide variety of goals, interests and needs (social, political,economic etc.).

This approach would permit to provide equal constitutional guaranteesfor establishment and operation of all organizationally stand-alone groups pursuing thelawful purposes, and is fully consistent with applicable laws and legal positions of the 20RF Constitutional Court, as well as reflects the best practices of constitutional processin democratic states. In this regard, the thesis robustly criticizes the exclusion ofbusiness entities from the range of voluntary associations.The fourth paragraph “Constitutional Rights, Freedoms and Duties of CitizenGroups” of the first chapter considers the application of fundamental civil rights andfreedoms to citizen groups and defines the range of such rights and limitations for theirexercise.

This issue is linked to the constitutional judicial protection of such rights.The fundamental civil rights were recognized in Russia legislatively in early 1990ies. Today, both the legal doctrine and practice of high judicial authorities as well asconstitutional instruments of many states reflect the approach according to which thecitizen groups and legal entities are entitled to fundamental civil rights and freedoms tothe extent that the nature of such subjects and such rights and freedoms admit thisopportunity.

This position results from the establishment of one of the basic scientificconcepts of citizen group/ legal entity as an independent legal association with its owninterests, goals, will, rights and duties and which is a party to legal relationships7.At the same time the author notes that there is no clear distinction between rightsof individuals and those which would apply to groups as well. For this purpose, a caseby-case approach would be appropriate implying that whether a specific legal rightapplies to a group should be determined in each specific situation.The thesis proceeds with an idea that some constitutional rights and freedoms (oflife, personal security, family secret etc.) may not be however exercised by groups dueto their nature, since such rights are closely tied with human features not attributable togroups. Therefore, the range of fundamental rights available to associations is muchnarrower than that of individual rights.In furtherance of this latter idea, the author provides classification of rights ofassociations based on the scope of their applicability to specific types of associations.The analysis of practice of the Russian Constitutional Court demonstrates that ittends to provide judicial constitutional protection with respect to industrial legal rightsof associations.

With due regard to all doubtless benefits of this approach, the thesis 7V. E. Chirkin. Legal Entity under Public Law. – М.: Norma. 2007. P. 28. 21offers conditions of attributing constitutional significance to industrial rights so that toavoid the excessive use of constitutionalization mechanism in the constitutional justice.We note that the constitutional doctrine of fundamental duties also applies tocitizen groups and not only stipulates that they must be adhered to by constitutionaljustice authorities but also supports the lawful interests of citizen groups when thisdoctrine is further detailed in laws and enhances the scope and opportunities forprotection of rights of associations based on constitutional justice.The second chapter “Review of Complaints from Citizen Groups by theConstitutional Court of the Russian Federation” of the thesis is focused on theoreticand practical issues related to the role of constitutional justice in the system of legalprotection of citizen groups’ rights, the balance between competences of constitutionaland ordinary courts in this area, the issues of delineating the range of citizen groupslegally entitled to refer to the Russian Constitutional Court, and the role of theConstitutional Court in development of approaches to these issues.

In addition, thechapter considers the conditions and procedural patterns of how the citizen groups mayexercise their right to constitutional complaints, as well as the issues of improving thejudicial constitutional protection of their fundamental rights.The first paragraph “The Role of Constitutional Justice in The System ofLegal Protection of Citizen Groups’ Rights” of the second chapter addresses therole and place of constitutional justice authorities among other mechanisms providingjudicial protection of rights and freedoms of citizen groups.Although there is much in common between different types of legal proceedings,the constitutional proceedings have a number of distinctive features. Its distinctivenessis especially noticeable in how the general principles of constitutional proceedings aremanaged. In particular, the adversarial principle is implemented quite moderately ascompared to civil or criminal proceedings, mostly because the constitutional controldoes not deal much with investigation of matters of fact.

However the Court remainsfree in identification and collection of the necessary evidence, and its role in legalproceedings is generally active enough, while opportunities of the parties toconstitutional proceedings are limited. 22The fact that the Court addresses solely matters of law does not imply that it maynot delve into factual circumstances. On the contrary, the insufficient studies of actualimpact rendered by laws and regulations on social relationships may result not only inimproper justification of unconstitutional restriction of fundamental civil rights andfreedoms but also in significant reputational risk for the Constitutional Court itself.The in-depth analysis of balance between competences of courts in the regulatorycontrol area highlights the criteria for jurisdiction of such cases as well as the existingdifficulties in separation of courts’ authorities. It also facilitates explanation of thesephenomena and suggests which measures should be taken to tackle them.

Specifically,there is an obvious problem of accessibility of justice for citizens and their groups incases when they challenge the conformity of local enactments to regional constitution(or statute) in those constituent entities of Russia where the constitutional or statutorycourts have more limited competence in this particular area than common courts in theregions with no representation of constitutional justice. As an interim solution (until theissue is settled at legislative level), such regions are proposed to engage the commoncourts in the provision of constitutionality (statutory nature) of their laws to compensatethe shortfall of competences.To our mind, the main issue of balance between competences of the RFConstitutional Court and regional constitutional courts is that, despite the differences inscope of control, the ranges of constitutional rights and freedoms fixed in the RussianConstitution and the fundamental laws of Russian constituent entities as well as thestandards used for relevant compliance control are generally the same.

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