About problems of interaction of bodies of constitutional justice and local self-management in the subjects of the Russian Federation
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ABOUT PROBLEMS OF INTERACTION OF BODIES OF CONSTITUTIONAL JUSTICE AND LOCAL SELF-MANAGEMENT IN THE SUBJECTS OF THE RUSSIAN FEDERATION
In world practice constitutional control is actually a develop institute with nearly bicentennial history. In this or that form it is presented and successfully functions in the majority of democratic states. Quite different situation has developed in our country, as for many years constitutional control was not spared due attention. This is not accidentally. In conditions of socialism, particularly during the period of the cult of personality and hard party control, under which legality was seriously violated, there existed significant detours from democracy, the role of people’s representation was reduced, and acted in the country administrative-command system and constitutional control were incompatible.
When in 1985s in Russia there began global reforms, directed to takedown of the soviet system, there has arisen such important question as improvement of legal protection of the fundamental law as one of the most important conditions of creation of democratic, legal, federative state, founded on the principle of division of the powers. The central place here was given to the constitutional control.
It has developed historically that Russia did not have any experience of organization of such activity. For reception of the required model of the constitutional control and its further adaptation to the conditions of the Russian Federation there has been chosen the so-called European (Kelzen, Austrian) model which supposed institution of specialized judicial body of constitutional control.
Fixing in the Constitution of the Russian Federation of 1993 principles of federalism and division of the powers, recognition for the subjects of the Federation of the right to have their own constitutions (charters) and legislation, to install the own system of bodies of the government, the possibility to play the active role in protection of rights of a person and a citizen, has become the further stimulus for development of constitutional proceedings in Russia. The federal level of the constitutional judicial control has already been successfully presented for already 15 years by the Constitutional Court of the Russian Federation. At the level of the subjects of the Russian Federation there act 13 Constitutional courts act in republic (Adygea, Bashkortostan, Buryatia, Dagestan, Kabardin-Balkar, Karelia, Komi, Marie El, North Ossetia-Alania, Yakutia (Sakha), Tartarstan, Tyva, Chechen Republic), as well as 3 charter courts in Kaliningrad, Sverdlovsk regions and in the city of Saint Petersburg.
In spite of the fact that the main laws of 39 subjects of the Federation provide creation of the constitutional (charter) courts , the process of formation of regional constitutional justice goes slowly with certain difficulty, connected with unwillingness of authorized structures of a number of regions to install «optional», in their opinion, checking body. Deceleration pace of development of regional constitutional justice generates doubt on the part of some scientists in viability of the models of constitutional proceedings in the subjects of the Federation .
Therefore even not very big experience, accumulated by some subjects of the Federation in the sphere of organizations of activity of the constitutional justice, requires serious scientific analysis and comprehension.
Recently referring to features of judicial constitutional control there has been more broadly used the notion «constitutional justice», which is defined by scientists  as activity of judicial bodies, meaning consideration of cases, whose subjects are constitutional-legal questions, connected with maintenance of observance of the constitution by state authorities and in decision making on them, bringing to legal consequences. Moreover constitutional justice comprises main features of justice typical for all courts (realization of justice on behalf of the state; realization of judicial activity solely on courts; realization of justice by methods, determined in the law; publicity of judicial proceedings; collegiate at consideration of cases; application in necessary events measures of state enforcement). The given list includes such features, as: «independent procedural form of realization of constitutional justice; validity of decisions of the constitutional court, leveled to legal validity of the constitution; special system of legislation, regulating constitutional justice» .
Realization of justice is the main, most important function of the judicial power. The Constitution of Russia (Part 2 Article 118) fixes that judicial power is realized by means of constitutional, civil, administrative and criminal proceedings. Thereby, constitutional judicial proceeding is comprised in the general system of justice. The resolution of the Constitutional Court of Russia from June 16, 1998 on the case about interpretation of the separate positions of Articles 125, 126, 127 of the Constitution of the Russian Federation directly specifies that the Constitutional Court shall be the special body of the justice . It shall be special by virtue of its competence realized in specific form of justice — constitutional proceedings. The main features of the special form are the number of subjects of control and initiators of consideration of cases, and connected with them procedures and legal consequences of decisions made.
According to the Federal constitutional law from December 31, 1996 «About the judicial system of the Russian Federation»  the constitutional (charter) courts are included in the uniform judicial system of the country and hereunder present the judicial branch of the state power at the level of the subject of the Federation. Decisions made within their authorities, are obligatory for all bodies of public authorities, physical and legal persons and are subjected to absolute execution on the entire territory of the Russian Federation.
Questions of organization of regional constitutional (charter) justice are included in some decisions of the Constitutional Court of the Russian Federation, and we can specify the following: the Definition of the Constitutional Court of the RF from 02. 02. 2006 37-O «At the request of the Constitutional Court of the Republic Karelia about the verification of constitutionality of the position of Paragraph Six item 1 Article 4 of the Law of the Russian Federation «About status of judges in the Russian Federation» , the Definition of the Constitutional Court of the RF from 27. 12. 2005 No. 491-O «At the request of Sankt-Petersburg city court about the verification of constitutionality of separate positions of the Federal constitutional law «About judicial system of the Russian Federation», the Law of the Russian Federation «About status of judges in the Russian Federation» and Federal law «About bodies of judge’s community in the Russian Federation»  and etc.
Thus, in our opinion, it is lawful to use the term «constitutional justice» referring to activity of judicial bodies of the constitutional control of the subjects of the Federation on legal control of the constitution.
Essence of the constitutional justice is constitutional control realized verification of statutory acts controlling on their correspondence to the Constitutions. Thus, constitutional justice, realizing legal protection of the Constitution, stand above other bodies of state authority allocated with certain authorities on realization of the constitutional control since for some bodies the main function is law created and law created activity and the constitutional control is the only additional function.
Besides, exactly judicial constitutional control installs for other body of the constitutional control (bodies of the state power, public prosecutor’s offices, and court of general jurisdiction) criteria of estimation of constitutionality since legal positions of the constitutional (charter) courts are obligatory for all. Therefore, we should agree with the opinion of Yu. Yudin, who notes that «exactly judicial constitutional control (constitutional justice), instead of constitutional control in its broad sense is more and more recognized in legal literature main, determining element of the mechanism of legal protection of the Constitution» .
The Constitutional justice in Russia makes significant contribution in the development of federalism, maintenance of supremacy of both federal Constitution, and constitutions (charters), adopted by the subjects of the Russian Federation, strengthening of unity of legal space, protection of rights and legal interests of the personality, as well as improvement of realization of the mechanism «of checks and balances», when the judicial power is capable to influence decisions and actions of the legislative and executive powers, «balancing» them. Realization of activity of regional justice is based on legislatively fixed authority and in accordance with the competence of constitutional (charter) courts.
Constitutional (charter) courts being bodies of the state power of the subjects of the Russian Federation have all preconditions to close interaction with local level of organization of public power on broad spectrum of questions. Federal legislation does not contain legal regulation of questions on interaction of bodies of constitutional justice and local self management therefore the rules of such interaction should be clearly regulated by the legislation of the subjects of the Russian Federation.
The object of checking by the constitutional (charter) courts of the subjects of the Russian Federation on constitutionality (charter) are acts on bodies of self management. Legislative formulas have general character. The most wide-spread is the position, according to which specific bodies of constitutional (charter) control of the subjects of the Federation consider cases on their correspondence to fundamental laws of statutory legal acts of bodies of local self management (republics: Karelia, Marie El, Udmurtia; the city of St. Petersburg, Krasnoyarsk, and Primorsk territories, Kaliningrad, Kurgan regions, Khanty-Mansi autonomous region and others.).
The Constitutional Court of Komi Republic considers the cases on correspondence to the Constitution of the republic of statutory legal acts of representative and executive bodies of local self management; The Constitutional Court of Republic Dagestan considers the cases on correspondence to the Constitution of the republic of legal acts of representative bodies of local self management and head of municipal units. In the majority of the subjects as the object of verification of constitutionality (charter) stand out charters of the municipal units (republics: Adygea, Dagestan, Ingushetia, Marie El; Irkutsk region, the city of Moscow).
Besides estimation of constitutionality of statutory legal acts of local self management statutory acts of officials of state management are subjected to verification (the Constitutional court of Republic Karelia), and the municipal establishments (the Constitutional Court of the Republic North Ossetia — Alania).
In connection with transition to two-level system of organizations of local self management the number of municipal units has increased greatly. There are 24,2 thousand municipal units in Russia in total .
Article 43 of the Federal Law «About general principle of organizations of local self management in the Russian Federation» from October 6, 2003 No. 131-FZ  includes in the system of the municipal legal acts charters of municipal units, legal acts, adopted at local referendum (the meeting of the citizens), legal acts of the representative body, of the chairman of the representative body of the municipal unit, of head of the municipal unit, of head of local administration, other officials of local self management.
Local law-making initiative is transformed in real life in enormous amount of municipal acts, regulating vitally important questions of the population.
Actual becomes the problem to realize at the level of the subject of the Russian Federation such legal regulation, at which the whole massive of municipal legal acts, carrying statutory nature, including charter and agreements, as well as questions, stood for the local referendum, did not fall out of objects of constitutional (charter) verification by the bodies of regional constitutional justice.
Legislation about constitutional (charter) courts of the subject of the Russian Federation gives the right to the bodies of local self management to apply with the request about the verification of constitutionality (charter) of statutory legal acts of the bodies of state authorities and local self management to the procedure of abstract statutory control. The bodies of local self management become active participants of the constitutional justice; possess the right of publicly-legal initiative of constitutional proceedings. This allows raising activity of bodies of local self management in protection of rights of local self management, as well as rights and freedoms of the citizens.
The form of the legislative fixing of the given right is different and reflects the degree of readiness of the regional lawmaker to take into account changes in organization of local self management. In majority of cases it is given to the bodies of local self management without concrete notification of the authorized body (republics: Bashkortostan, Buryatiya, Ingushetiya, Karachaev-Circassian, Karelia, North Ossetia — Alania, Tatarstan, Chechen, Krasnoyarsk territory, Sverdlovsk and Kurgan regions, Khanty-Mansi autonomous district).
According to the Federal law from October 6, 2003 No. 131-FZ bodies of local self management are bodies directly elected by the population and (or) formed by the representative body of the municipal unit, allocated with authorities on decision of questions of local significance (Article 2).
The specified law brings serious changes in the structure of bodies of local self management, formed by the representative body of the municipal unit, head of the municipal unit, local administration (executive-efficient body of the municipal unit), checking body of the municipal body, other bodies and electoral officials of local self management, provided by the charter of the municipal unit and possessing authorities on decision of questions of local significance (Article 34).
Thus, alongside with the above mentioned local bodies, possessing imperious authorities in municipal units, there can be created different bodies of local home self management: councils of districts, settlements, and street committees etc., which are not bodies of public authorities. Here we can put the question: what body of local self management can be given the right to apply to the constitutional (charter) court of the subject of the Russian Federation?
The legislation of Republic Tyva gives the right to apply to the Constitutional Court of republic solely to the representative bodies of local self management. It could be explained from positions of the Federal Law from August 28, 1995 No. 154-FZ «About general principles of organizations of local self management» , according to which the structure of bodies of local self management required presence of electoral bodies only that is representative bodies of local self management. However, in accordance with Part 2 Article 34 FZ No. 131 presences in structure of bodies of local self management of the representative body of the municipal unit, head of the municipal unit, local administration should be obligatory, except for the cases provided by the federal law.
The legislation about the constitutional courts of republics: Adygea, Dagestan, Marie El, of the city of Moscow, Stavropol territory contains the norms, giving the right to application to representative bodies of municipal units, heads of municipal units. The specified position does not take into account that in accordance with the Federal Law No. 131 head of the municipal unit can lead either local administration, being the electoral official, or the representative body of the municipal unit. In this case local administration should be led by its head assigned to the post on the contract. About 4 thousand local administrations are headed by assigned on the contract heads of administration .
It is difficult to find the motivation of reasons, on which head of local administration, carrying out individual management to executive-efficient body of the municipal unit, in which there are concentrated main levers of management of local bodies, the whole local economy, are realized separate state authorities is not allocated with the right to apply to the bodies of constitutional (charter) justice.
Reforming of the system of local self management requires from regional lawmaker the exact determination of bodies and officials of the municipal formation, allocated with the right to apply to the bodies of constitutional (charter) justice.
One of the main directions in activity of the bodies of constitutional (charter) justice is interpretation of the constitutions (charters) of the subjects of the Russian Federation. The number of subjects of the right to apply to the regional body of constitutional justice with request about interpretation of the fundamental law of the subject of the Russian Federation coincides with the subjects, authorized to initiate the verification of constitutionality of laws and other statutory acts.
At the same time there are some differences. In republics Bashkortostan and Karelia, Khanty-Mansi autonomous district the right to apply to specific bodies of constitutional control with request about interpretation of the constitution (charter) is given to the representative bodies of local self management.
Interpretation of the fundamental law of the subject of the Russian Federation is the exclusive authority of the body of constitutional justice. Decisions on the case about interpretation have higher validity than decisions of bodies of constitutional justice on cases about the verification of constitutionality of laws and other legal acts of the subjects of the Russian Federation. On the account of particularities of this procedure of constitutional proceedings the subjects of the Russian Federation can apply higher requirements to the «level» of bodies of local self management, authorized to apply with request about interpretation of the fundamental law of the subject. And in this case it is necessary to fix legislatively this right for the concrete body of local self management.
The constitution (charter) of the subject of the Russian Federation shall be the major politician act of the subject of the Federation, reflecting interests of all political forces of the society. Local self management shall be one of the fundamentals of the constitutional system, recognized and guaranteed on the entire territory of the country.
However in republics Dagestan, Marie El, Tatarstan bodies of local self management are not given the right to apply to the constitutional court of the region with request about interpretation of the Constitution of the republic that is underestimation of the constitutional conditioning of local self management as institute of public authorities.
The above stated authorities of the charter courts of the subjects of the Russian Federation should be obligatory. There also exist initiative authorities, which include: sanction of disputes on competence, verification on complaints on violation of constitutional rights and freedoms of the citizens, other authorities of the constitutional (charter) courts. Initiative authorities of charter courts fully reflect their role and specifics in development of local self management of the subjects.
At insufficiency of the legal regulation there are inevitable disputes on competence between state bodies and bodies of local self management, between bodies of local self management, of one, or different levels of municipal units. Taking into account publicly-legal nature of these disputes, their sanction is the prerogative of bodies of constitutional (charter) justice.
At carrying out the municipal reform the guarantee of rights of the citizens on realization of the local self management should be allocating them with the right to apply with the complaint on violation of the constitutional rights and freedoms, including by statutory acts of bodies of local self management as well as officials of municipal units.
At the same time legislation of republics: Adygea, Marie El, Chechen Republic does not provide legal acts of bodies of local self management as the object of the constitutional complaint. The specified circumstance is «technical» inaccuracy of the legislation about the constitutional courts of these republics.
The analysis of competency of the constitutional (charter) courts of the subjects of the Russian Federation shows that the constitutional (charter) justice finds the ways of interaction with local self management. At the same time the uniform legal regulation of questions, connected with protection of rights of local self management is necessary. The decision of this problem will allow to apply the facility of the constitutional justice and local self management in development of the country.
One of the most problematic questions of theory and practice of constitutional construction at modern stage in majority of post socialist states is the question on constitutionally legal liability. In spite of the fact that constitutionally legal liability as a whole has been formed as institute of public law and element of system of guarantees of constitutional system of these states, the given type of liability is comparatively new phenomena in law.
At the same time, formation of institute of constitutionally legal liability is one of the most actual problems, arisen in modern democratic society and state. The fact is that the main purpose of constitutionally legal liability is protection of the Constitution. This is important since it fixes and protects the supreme social values, bases of organization of society and state, functioning on public imperious structures, legal status of the person.
Constitutionally legal liability alongside with other elements of the mechanism of protection of the Constitution is directed to maintenance of stability of the constitutional system, balance of rights and duties of participants of constitutional legal relations. It assumes the possibility of application measures of enforcement on the part of the state in the event of completion of the constitutional delict that means the negative estimation of illegal behaviour, disciplines subjects of the constitutionally legal relations, spurs them to appropriate performance of their own duties, executes the preventive function .
One of the serious problems of the constitutional law is that realization of many norms of the material law is not provided duly with procedural norms. This to the full pertains to the problem of constitutionally legal liability. The problem is to avoid this misbalance. To do this, is not certainly, simply. But exactly only then to the full will work the mechanism of constitutional-legal regulation and, accordingly, constitutionally legal liability. The problem is that many constitutional norms are not duly protected that reduces the possibility of application of the given type of liability. But this does not promote provision of protection of the constitutional norms, formation of constitutional legality.
We consider that institute of constitutionally legal liability should in greater measure, than it exists at present «work» for protection of the Constitution, for stability of the constitutional system, for provision of constitutional legality, for democratic legal status of the person. In this connection, M.V. Baglay absolutely fair emphasizes that in the democratic legal state constitutionally legal liability should act as the real guarantee from concentration of power of authorities and its abusement . Moreover it is important that amount of rights and duties of subjects of authorities should be balanced and should be in proportional dependency. The measure of power of authorities should be measured by their liability.
Many negative processes, having place in majority of states — members of C.I.S., in significant measure are connected with the fact that norms of institute of constitutionally legal liability do not work. Very often there is no political will for it to work though there are enough reasons for application of such type of liability.
To considerable extent the outlined problems are determined by absence of complex scientific bases of institute of the constitutionally legal liability. Undoubtedly, the positive factor is that constitutionally legal liability becomes the object of scientific prospecting in modern constitutional-legal science . At the same time in spite of the fact that at present the fact of existence of institute of constitutionally legal liability no one actually calls in question, it is necessary to state that in majority of textbooks on the constitutional law either nothing is spoken about the given type of liability , or the given questions are covered enough fragmentarily.
And this is not accidentally. The fact is that many questions on constitutionally legal liability are «white blanks» in science of the constitutional law. In the opinion of N.M. Kolosova, the reasons, which held up and hold up the cut-in of the constitutionally legal liability in traditional set of types of legal liability both in scientific plans, and in statutory fixation, are features of constitutional-legal relations. First, this is their complex, multiplanned nature, in connection with which constitutionally legal liability can have the nature of liability of authorities as a whole before citizens, responsibility officials of concrete bodies, responsibility of physical and legal persons, and therefore there are sharply put questions on delimitation of constitutional-legal and political, civil-legal and administrative responsibility. Secondly, this latent (hidden) nature of constitutionally legal relations: to reveal constitutionally legal offense (constitutional delict), the complex analysis of constitutional norms is necessary. Thirdly, particularities of sanctions have place (majority of them, for instance, cancelling acts, can hardly be mentally perceived as sanction) .
Constitutionally legal liability as the scientific and practical problem of constitutionalism, according to the well-known Ukrainian scientist Yu.N. Todyka assumes analysis and coverage of the following theoretical questions: 1) motivation of this responsibility as independent type of legal liability; 2) is formed or only at the stage of formation institute of constitutionally legal liability; 3) clarification of correlation of political and constitutionally legal liability; 4) influence of constitutionally legal liability on maintenance on stability of the constitutional system, protection of the Constitution; 5) structure, element composition of constitutionally legal liability, reasons for its origin, specifics of subjects of this responsibility; 6) mechanism of realization of this type to legal liability; 7) purposes, tasks, functions, contents of constitutionally legal liability; 8) correlation and interrelation of constitutionally legal liability with other types of legal liability; 9) role of the Constitutional Court in the mechanism of realization of constitutionally legal liability; 10) constitutionally legal liability and its role in development of legal statehood and civilized civil society, democracy and constitutionalism; 11) definition of the notion of the constitutional offense (delict) as the reason for origin of constitutionally legal liability, analysis of its composition and definition of criteria of classification of the constitutional offenses; 12) procedural supply of realization of constitutionally legal liability; 13) possible trend of development of this type of legal liability; 14) whether the separate statutory-legal act, which could in complex regulate different aspects of realization of constitutionally legal liability is necessary; 15) what factors influence upon dynamics of this type of legal liability, etc. .
All this are the most important doctrine and practical aspects of constitutionally legal liability, which are necessary to solve for the purpose of increasing of efficiency of influence of the Constitution, norms of constitutional legislation on social processes, development of constitutionalism and legal statehood. At decision of these questions the reasonable approach is important and presence of motivated recommendations for practice is necessary as well. And the science of the constitutional law is called to give the answers to these questions, connected with problems of constitutionally legal liability.
It is clear that the constitutional liability can not be an analogue of other types of legal responsibility. At the same time, it is necessary to note that its specifics is not enough studied, and the expressed opinions are rather conflicting. Thus, if subjects of the constitutional-legal liability are individuals — citizens, foreigners, refugees, officials of executive state authorities and local self management, as well as groupings — bodies of public authorities, political parties etc., than subjects of criminal responsibility should be only physical persons. The bases of constitutionally legal liability is constitutional delict, greatly diversified both from basis of criminal responsibility — the crime, and from other delicts — administrative, civil-legal.
Provided for constitutional depicts constitutionally legal sanctions are far from comply with criminal punishments for crimes and administrative sanctions, established for administrative offenses. Application of measures of constitutionally legal liability does not draw conviction or any state of punishment. Constitutional-legal sanctions are applied by broad number of authorized bodies and persons: bodies of legislative, executive, judicial authorities, local self management and officials. Criminal punishments are applied only by court; disciplinary sanctions are applied by bodies and officials authorized by disciplinary power. Measures of constitutionally legal liability can be applied by bodies and officials relatively of not subordinated and uncountable to them subjects of constitutional delict. Hereunder they differ from disciplinary measures, which are applied to workers and employees in the order of subordination of higher bodies and officials .
Constitutionally legal liability, as any other legal category, objectively requires its determination, definitional determination. At present in science of the constitutional law there is no uniform determination of the constitutionally legal liability. Variety of approaches is conditioned by difference in methodological approaches in study of this legal phenomena and absence of statutory -legal definition of constitutionally legal liability in legislation of majority of modern states.
First of all, the question is duality of estimation of constitutionally legal liability. Scientists, jurists, covering the problem of constitutionally legal liability, can be divided into two «groups»: supporters of narrow understanding i.e. acknowledging only «negative» responsibility, and supporters of «double aspect» responsibility, disintegrating into «positive» and «negative». The sense of opposition of these two concepts is that the one acknowledges the possibility of constitutionally legal liability solely after offense (constitutional delict), the other comes from existence of responsibility before violation of the norm. Accordingly, some jurists see in responsibility manifestation of law-enforcement function, the others try to connect responsibility with regulative and even сstimulating functions of the law.
For clarity let’s illustrate the above stated positions with some examples. Thus, B.A. Strashun emphasizes that constitutionally legal liability should be understood only as «negative». In his opinion, division of responsibility into «positive» and «negative» is nonsense, taking into account that practically the question is about quite miscellaneous things: one thing, when we speak of a number of problems and authorities, for which the official should be responsible, the other when — the person or the body is subjected to disadvantage consequences .
Categorically declaring about misrecognition of positive constitutionally legal liability, N.M. Kolosova, notes that such responsibility of authorities is possible, but it does not relate to legal liability and accordingly to constitutional liability. The supporters of positive constitutional liability, according to N.M. Kolosova, suppose that it exists if it is legislatively determined and the power is responsible before the people. In her opinion, it is not correct, since for becoming of constitutionally liability it is necessary to have violation of the principles and norms, fixing constitutional rights and duties, provided by sanctions. Considering this, she defines constitutional liability as the need of having disadvantage consequences for non-execution (improper execution) by the subjects of the law of their own constitutional duties and for abuse of their own constitutional rights .
Let’s try to state briefly argumentation of the supporters of «positive» responsibility. The point of view concerning the double aspect of understanding of constitutionally legal liability is varied. In the opinion of integer of the number of lawyers, constitutionally legal liability should not be considered solely within the framework of narrow understanding — as application to the offender of sanctions of legal norm or application of measures of state enforcement. Thus, according to of Yu.P. Eremenko, the most important side of the «positive» aspect of constitutionally legal liability is expressed in account abilities, control . V.F. Melashchenko, considering that in the sphere of constitutional relations there dominates «positive» responsibility, but «retrospective» plays the role of auxiliary (though far from secondary responsibility), considered «retrospective» responsibility, as responsibility for the past, and «positive», as responsible behaviour, responsible attitude of the person (the body) to the duties, appropriate performance of the duties, account ability, legal competence .
The complex double aspect definition approach differs the position of the author of the first in Ukraine candidate’s thesis, covering problem of constitutionally legal liability L.R. Nalivayko, which defines constitutionally legal liability as the type of social and legal responsibility, existing in the sphere of constitutionally-legal relations, provided by norms of the constitutional law, characterized by the specific number of subjects, mechanism of realization and sanctions, revealing in forced application of ways of influence for illegal deed (retrospective aspect) and in responsible condition of the obliged subject (positive aspect), acting as the most important guarantee of realization and protection of the Constitution .
The position of double aspect of constitutionally legal liability is supported by the well-known domestic scientists-jurists V.F. Pogorelko and V.L. Fedorenko. In their opinion, constitutionally legal liability should be defined as the independent type of legal responsibility, which assumes appropriate and conscientious performance by the subjects of the constitutional law of their duties (the positive aspect) or coming of negative consequences or undesirable change of constitutionally legal status for these subject for violation of norms of the working constitutional law (negative aspect) .
Not debating on cause of legal nature and contents of constitutionally legal liability, we shall note that under all differences of definitional design of double aspect constitutionally legal liability and variety in interpretation of the sense and contents of «positive» responsibility, the named points of view are united in the uniform conceptual position by desire to find the equal equivalent, legal explanation of lexical phenomenon, expressed in abstract enough notions «responsibility for ensured affair», «approach with responsibility», «to allocate with responsibility», «legal duty» etc.
Such lingual terms actually reflect objective need of society to see in responsibility not only the synonym of the punishment, but the facilitator of creative and simultaneously lawful constitutional behaviour. However it is necessary to agree with the point of view of M.A. Krasnov, according to whom, in the proposed by these authors theoretical design there is lost the qualitative specifics of category of responsibility. Essentially it is simply substituted by other categories (duty, reporting, positive attitude), each of which has its own purpose and contents. Consequently, «positive» responsibility loses practical sense . Thereby, wholly justified desire by means of responsibility to stimulate the mediated by the law social-useful activity is not filled with practical sense, makes unclear the holistic matter of constitutionally legal liability.
Therefore amorphness of the concept of «double aspect» responsibility has caused the critics even on the part of those, who acknowledge «positive» responsibility. Their critics present itself the logical end of the uniform notion of responsibility. The bright representative of this trend has become O.E. Leist, who considered that creative work (first of all management) is impossible under the threat of sanctions, as fear constrains the initiative .
We think that estimation of this or that position depends mainly on what is put in understanding of legal responsibility in general. If to follow the opinions of the majority of scientists-jurists, who consider legal responsibility solely as responsibility for the past illegal behaviour, the collation within the framework of constitutionally legal liability of elements of «retrospective» and so called «positive» responsibility is meaningless since in this case different notions are meant.
If to follow the position of those who define legal responsibility more broadly, distinguishing: 1) responsibility for past (the retrospective aspect); 2) responsibility in the sense of responsible behaviour, account abilities, legal competence (active or positive aspect), the above mentioned collation of such elements of constitutionally legal liability, as «retrospective» and «positive» responsibility is, of course, justified, however herewith there is lost the main sense of discourses about constitutionally legal liability as one of types of legal responsibility since in this case, eventually, everything reduces to the fact that in the constitutional law legal responsibility emerges «mainly in its general, positive importance — as responsible attitude of the person to the duties, allocated on by the law, correct, conscientious, successful, efficient performance, effective state and public control over such performance of the duties» .
Meantime the lawyers, even those who support broad understanding of legal responsibility, the main interest from the point of view of constitutionally legal liability is caused by its «retrospective» aspect, for the sake of which, there has been put the question about existence of constitutional-legal (state-legal, constitutional) liability as one of types of legal responsibility.
As to the notion of «positive» responsibility, in the opinion of O.E. Kutafin, it should be necessary to refuse on it since its application causes that one and the same phenomena is named the duty, and responsibility, and makes unclear the meaning of responsibility as one of the efficient regulator of behaviour . Another Russian lawyer I.A. Kravets, speaking about inefficiency of application of category «positive» and «negative» responsibility, considers that they should be changed by the more identical terminology, reflecting real process of realization of the constitutional norms and the corresponding standards of the world constitutional development .
We fully agree with these statements. We consider that it is not responsibility that generates the fear, but ill-considered basis to responsibility, disproportion between the presented degree of freedom and result inadequate on strictness on sanctions. If to consider that a certain virtual «positive» responsibility can play the role of facilitator of the active behaviour of subjects of constitutionally legal relations, it means the presumption of conscious relations of each subject to the duty solely by virtue of one constitutional-legal status. Therefore, we agree with M.A. Krasnov, who considers that such position undermines the base of control of society over the state in general, justifies top-level displacement of officials on «hardware cells», promotes exactly irresponsibility of subjects, possessing imperious authorities .
That is why, coming in need of conversion of the institute of constitutionally legal liability in strict legal institute, possessing procedural mechanism of realization, we should acknowledge universal, holistic notion of constitutionally legal liability, not divided into «types», «aspects», but differentiated only in practical plan — on mechanisms of realization.
We consider that constitutionally legal liability is the category, which united fabrics is dangerous to destroy. No matter in what field of the law the responsibility is revealed (including the constitutional law), it always contains the base elements. The delimitation of «positive» and «negative» responsibility leads to withdrawal of one or several such elements. Hereunder institute of responsibility loses its potential and meaning as efficient regulator of the expected behaviour.
In our opinion, constitutionally legal liability should be understood as legal relations between two subjects of the constitutional law, under which one side is the offender. in consequence of the committed constitutional delict is obliged to sustain the measures of constitutional-legal responsibility, provided by the sanction of the violated norm, and suffer negative consequences, and the other side — the instance of constitutionally legal liability, has the right or is obliged to draw him to responsibility.
To understand in full the essence of constitutionally legal liability is possible through analysis of inherent features. Constitutionally legal liability can be understood on account of the system features, inherent to legal and social responsibility as a whole. Thus, A.A. Kondrashov, for example, relates to the number of essential features of the given type of responsibility: the state and the public reprobation as the threat of application or direct applications of enforcement measures (mainly organizing, less personal nature), consisting in deprivation of imperious authorities, loss of legal force of the act, dismissal of the state body or stay of its activity or termination of activity of the public association etc.; committed offense i.e. constitutional offense, with the most important conditions — objective illegality and blame; the special procedure of determination and allocation of responsibility of the body (bodies)authorized to it; the formed between the offender and the state legal relationship on the event of committing offense, characterizing the origin and special enforcement relations .
The system analysis of constitutionally legal liability allows to select the following two groups of features s: 1) general features, characterizing constitutionally legal liability as social-political phenomenon, its place and importance in the society, correlation and interrelation with other types of responsibility i.e. the features, illustrating this phenomena without deep detailing; 2) more concrete features, pointing specific lines, inherent of constitutionally legal liability, define its essence and contents, by means of which it is possible to distinguish other types of legal responsibility.
The first group of features of constitutionally legal liability includes the following postulates:
— constitutionally legal liability is the independent type of legal and public-legal responsibility and, at the same time, is the specific form of social responsibility;
— constitutionally legal liability has constitutional (system) nature i.e. it determines general features of legal responsibility for violation of legislation for other types of legal responsibility;
— constitutionally legal liability is one of the elements of the constitutional system since emerges the especial phenomenon in the system of social and political relations;
— constitutionally legal liability has political nature, determined by specifics of constitutional legal relations;
— constitutionally legal liability is one of the specific system, qualified features of the constitutional law as the field of law; includes the method of the constitutional law, marking off this branch from others, points to its qualitative specificity, independence;
— constitutionally legal liability has great importance for legalization and legitimation for public authorities;
— constitutionally legal liability emerges as the most important element of guarantees of existence, realization and protection of the Constitution and all main institutes of the constitutional law, being the objects of constitutionally legal liability (institutes of the constitutional system; citizenship; rights and freedoms of a person and a citizen; forms of direct democracy; parliamentarianism; presidency; executive power; judicial power; local self management and etc.);
The second group of features revealing the specific positions of this institute, can include:
— the source of constitutionally legal liability is not only the Constitution but the series of laws making constitutional legislation;
— the understanding of constitutionally legal liability as the universal, holistic system of category without its division into aspects;
— specific of the bases of constitutionally legal liability: committing by the subject of constitutional-legal relations (constitutional delict);
— the specific number of subjects of constitutionally legal liability, potentially coinciding with the number of the constitutional law. The Exception is the people, national minorities and ethnic groups;
— specifics of sanctions of constitutionally legal liability;
— presence of specific procedural forms of constitutionally legal liability, realized by certain bodies, structures, officials.
legal liability constitutional control
1. См.: Кряжков
3. См., например, Юдин
5. Собрание законодательства РФ. — 2008. — № 25. — Ст. 3004.
6. Собрание законодательства РФ. — 2007. — № 1. — Ст. 1.
7. Вестник Конституционного
8. Вестник Конституционного
9. См.: Юдин
10. Государственная власть и местное самоуправление. — 2008. — № 2. — С. 45.
11. Федеральный закон «Об общих принципах организации местного самоуправления в Российской Федерации» от 6 октября 2003 года № 131-ФЗ // Собрание Законодательства Российской Федерации. — 2013. — № 40. — Ст. 3822.
12. Федеральный закон «Об общих принципах организации местного самоуправления» от 28 августа 1995 года № 154-ФЗ // Собрание Законодательства Российской Федерации. — 2005. — № 35. — Ст. 3506.
13. Государственная власть и местное самоуправление. — 2008. — № 2. — С. 45.ПоказатьСвернуть