Тристан Д А _Summery (1138904), страница 6
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On the otherhand, constitutions of Russian constituent entities may provide both for additional rightsand freedoms not reflected in the state Constitution and the additional standards forcontrol of observation of fundamental rights. In the light of the foregoing, the practiceof the Constitutional Court to de facto revise the judgments issued by regionalconstitutional courts appears inadmissible. Where a constitutional (statutory) courtdeclares any enactment inconsistent with the constitution or statute of the relevantRussian constituent entity, a path may be so opened for subsequent reference to theConstitutional Court for examination of those provisions of such regional constitution or 23statute on which the relevant judgment was based for conformity to the RussianConstitution8.
In such cases a ruling of the Court may cause the constitutional orstatutory court of a Russian constituent entity to revise its judgment.The second paragraph “The Citizen Groups as Holders of a Right to Refer tothe RF Constitutional Court: Key Issues and Trends” of the second chapterconsiders the issue related to identification of parties eligible to file constitutionalcomplaints and included in the term “citizen groups” as defined in Law No. 1-FKZ, aswell as reviews the Court’s practice in this regard.Law No.
1-FKZ enhances the range of subjects entitled to refer specific regulatorycontrol issues to the Court but fails to provide detailed definition of the term “citizengroups”. It is established that the key part in definition of this term is played byregulatory considerations and interpretations generated by the Constitutional Courtwhich thus enhances the range of parties initiating the specific regulatory controlactivities, by including in this range the business and nonprofit entities, territorialentities under public law (such as local communities or constituent entities of theRussian Federation).Both the admission that citizen groups may refer to the Constitutional Court andthe enhancement of the range of eligible applicants by the latter certainly deserve anappreciation. At the same time, the author of the thesis notes that, while defining therange of groups entitled to file constitutional complaints, the Court, on the one hand,identifies them with the groups listed in Article 30 of the RF Constitution.
However, infact the practice of the Court appears inconsistent with its own legal position, since therange of eligible groups which it admits to be entitled to file constitutional complaintsstretches far beyond the scope of voluntary associations established through the exerciseof the right to association, the concept and inherent elements of which have beenconsidered in this study. As the thesis demonstrates, the Court allows constitutionalcomplaints to be filed by parties which do not actually meet the criteria of citizengroups mentioned above (state or municipal unitary enterprises, bar associations, single 8Yu.
V. Filimonov. Constitutional (Statutory) Courts of Constituent Entities of the Russian Federation in the Entire Systemof Governmental Authorities // Urgent Issues of Legal Science in the Modern Period. Part 1. – Tomsk. 1998. P. 129 - 133. 24member legal entities, municipalities or other constitutional entities of the RussianFederation etc.), which fact exposes the Court to fair criticism. By this reason, the thesisproposes to clarify at legislative level the range of parties permitted to initiate theconstitutional regulatory control enquiries, based on the need to allow the filing ofconstitutional complaints to every holder of fundamental rights and freedoms.The proposed legislative changes would also address the identified inconsistentpractices of the Constitutional Court in determining the parties entitled to fileconstitutional complaints to defend rights of citizen groups and the parties whose rightsmay be defended in the Court by a citizen group, given the nature of relevant entity.The third paragraph “Conditions and Procedural Patterns of Exercise byCitizen Groups of their Right to Refer to the Constitutional Court” of the secondchapter reviews the criteria which are to be satisfied by constitutional complaintsaimed at protection of fundamental rights and freedoms enjoyed by citizen groups aswell as the requirements imposed on an applicant as such to ensure that its complaintwill be accepted and processed on its merits.Conditions for exercise by a citizen group of its right to file constitutionalcomplaints include requirements concerning eligibility of an applicant and the formalrules of submission each of which is addressed by the thesis in full detail.
The existinggaps and inconsistencies in legal regulation of specific admissibility criteria are in mostcases rectified by legal positions of the Court itself based on the establishedconstitutional and legal practice; however, some of them especially those concerning therange of statutory acts requiring examination or the reasons for dismissal of complaintetc. still need clarification at legislative level.Having considered the requirements imposed on a filing party, the authorconcludes that the exercise by a citizen group of its right to file constitutionalcomplaints does not depend on whether it has a legal personality. Otherwise, a right tocreate and operate a group without legal personality would be fictitious and ineligible tojudicial protection.
Similarly, dissolution of a group should not be treated as a groundfor leaving its fundamental rights unprotected by constitutional justice if the legalprovisions pursuant to which it was dissolved are challenged. 25As also shown by review of the Court’s practice, the Court justifiably tends tocontinue consideration of complaints from reorganized citizen groups notwithstandingthat this issue is not regulated by current laws.The fourth paragraph “Issues of Efficient Protection of Citizen Groups’Fundamental Rights and Freedoms by the RF Constitutional Court” of the secondchapter demonstrates that what a court administers may only be called “justice” if itsproceedings provide fair and efficient reinstatement of one’s rights.
A right of citizengroup to judicial protection via constitutional justice is two-pronged: it is a right to seeksuch protection and a right to receive it. Therefore, the protection of rights of a citizengroup referring to the Court may only be considered successful if such citizen group isduly provided with access to constitutional justice reinstating its constitutional right tothe fullest extent.As the basic indicators for assessment of efficiency of the Constitutional Court indefense of citizen groups’ fundamental rights and freedoms, the thesis offers theprinciples of proportionality, legal certainty, balance between private and publicinterests, and fairness.
Adherence and consistent application by the Court of theseprinciples without distortion in addressing the violations of fundamental rights of citizengroups will prove high efficiency of constitutional justice, while any deviation fromthese approaches will indicate inefficiency or inadequate efficiency of the judicialconstitutional protection of citizen groups.Defining each of these principles, the author provides examples in support of hisinference that efforts of the Constitutional Court aimed to ensure protection of citizengroups’ constitutional right to judicial defense, their economic and cultural rights andfreedoms, a right to local self-government, as well as constitutional guaranteesconnected with liability of citizen groups under public law, are generally useful.
At thesame time however, the protection by the Court of fundamental rights and freedoms ofcitizen groups in political area is not fruitful enough because in this area the practice ofthe Court strongly deviates from the above principles. 26In the final part of his thesis, the author summarizes the results of his study andproposes recommendations to improve legislation in the sector of constitutional justice,as well as deliberates on potential future development of the issue.Earlier researches published by the author on the subject matter of this thesisinclude (4.7 print sheets in total):Articles published in the issues recommended by the State Commission forAcademic Degrees and Titles of the RF Ministry of Education and Science:1.D.
A. Tristan. Territorial Public Law Citizen Groups as Parties Eligible toRefer to the RF Constitutional Court. // Constitutional and Municipal Law. 2016. No. 4.P. 51–58. – 0.9 p.s.2.D. A. Tristan. Business and Nonprofit Entities as Parties Eligible to Referto the Constitutional Court of the Russian Federation: Debatable Points // Science ofLaw Issues. 2016. No. 2.
P. 11-34. – 1.5 p.s.3.D. A. Tristan. Citizen Groups as Holders of Constitutional Rights,Freedoms and Duties.// Constitutional and Municipal Law. 2016. No. 12. P. 30-36. –0.9 p.s.4.D. A. Tristan. Citizen Groups: Concept and Key Elements (in the context oflegal positions maintained by the Constitutional Court of the Russian Federation) //Journal of Constitutional Justice. 2017.
No. 3. P. 10-18. – 1 p.s.Articles published in other books, collections of research andconference records:D. A. Tristan. Citizen Groups as Holders of Fundamental Rights and Freedomsunder International Covenants on Human Rights.// International Covenants on HumanRights: Value Aspects. Records of the International Research-To-Practice Conference /Executive Editors: Т. А. Soshnikova, N. V. Kolotova. - М.: Publishing House of theMoscow University for the Humanities. 2016. P. 307-313. – 0.4 p.s..
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