Norms of the international law in courts of the Constitutional justice of the subjects of the Russian Federation
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NORMS OF THE INTERNATIONAL LAW IN COURTS OF THE CONSTITUTIONAL JUSTICE OF THE SUBJECTS OF THE RUSSIAN FEDERATION
In accordance with Part 4 Article 15 and Part Article 17 of the Constitution of the Russian Federation the conventional principles and norms of the international law and the international contracts are the component of its legal system, and rights and freedoms of a person and a citizen are guaranteed according to the conventional principles and norms of the international law.
In the specified constitutional norms there exists the mechanism, allowing to enter into domestic legal system the conventional principles and norms of the international law, and the norms of the international contracts of the Russian Federation.
The similar norms are stipulated in many a number of the constitutions (charters) of the subjects of the Russian Federation. It conditions their application in activity of the organs of the regional constitutional justice.
The constituent documents of the subjects of the Russian Federation in which the constitutional (authorized) courts act, the later are allocated with the similar powers on the sanction of cases about conformity to the constitutions (charters) of the subjects admitted by their organs of the government of laws, other statutory legal acts and statutory legal acts of the organs of local management. However, the practice of the separate constitutional (charter) courts distributes the verification of statutory acts not only on their conformity to the constitutions (charters) of the subjects of the Russian Federation, but to the Constitution of the Russian Federation and the norms of the international law.
This circumstance, in particular, has been precisely designated by the Constitutional Court of Republic of Karelia on the case about the verification on conformity to the Constitution of Republic of Karelia of some regulations of Article 20 of the Law of Republic of Karelia «About republican taxes (rates of taxes) and collecting to the territory of Republic of Karelia» in the Resolution from May 8th, 2001 has also specified, that «in accordance with Articles 2, 5, 8, 16, 19 of the Constitution of Republic of Karelia republican laws on taxes should not contradict the regulations of the Constitution of the Russian Federation and federal laws, the Constitution of Republic of Karelia, the conventional principles and norms of the international law, to limit freedom of economic activity in the sphere of business, and should be obliged to provide equal conditions of legal protection for all businessmen in Republic of Karelia «.
The question of application of the conventional principles and norms of the international law and international contracts in activity of the Constitutional Court of the Russian Federation has repeatedly been the subject of research and is already covered widely enough.
Chairman of the Constitutional Court of the Russian Federation V.D. Zorkin has made the conclusion that application of the norms of the international law, especially of the norms of the European convention on protection of human rights and the fundamental freedoms by the Constitutional Court of the Russian Federation, plays the important role in development and strengthening of the Russian law as a component of the uniform European legal field. As the national judicial organ of the constitutional control the Constitutional Court of the Russian Federation focuses the development of the Russian legal system, its lawmaking and legal activity as a whole in direction of conformity to modern understanding of rights and freedoms of a person and a citizen stipulated in the European convention on protection of human rights and fundamental freedoms.
It is necessary to note, that the same value for modern understanding of the protected rights and freedoms, for maintenance of guarantees of constitutional rights and freedoms in accordance with international legal standards on the territory of the separate subjects of the Russian Federation has the activity of the constitutional (charter) courts of the Russian Federation.
At the international conference «Human rights and the constitutional (charter) legal proceedings in the subjects of the Russian Federation», held on15th-16th December, 2003 in Saint Petersburg, M.A. Mityukov for the first time has in detail covered the question of application of the conventional principles and norms of the international law in practice of these courts. The data given at the conference made by October 2002, have been put by the speaker into the basis of the subsequent statistical and analytical research of decisions of the regional organs of the constitutional judicial control. In total till September 2005 in 70 decisions (in 63 resolutions and 7 definitions) in the fifteen working regional constitutional (charter) courts there are references to the conventional principles and norms of the international law and international contracts.
The dynamics of the given decisions are the following: in 1997 in the courts of regional constitutional justice 4 decisions contain references to the norms of the international law; in 1998 — 4; in 1999 — 7; in 2000 — 8; in 2001 — 4; in 2002 — 13; in 2003 — 14; in 2004 — 10; for 8 months of 2005 — 6.
At removal of judgements their additional substantiation by the norms of the international law has essential value as a kind of formation of the legal position of the case considered.
Such conclusion is proved by the concrete examples from judiciary practice.
Thus, at removal of the Resolution of the Constitutional Court of Republic of Karelia from September 15th, 2005 on the case about the verification on conformity to the Constitution of Republic of Karelia of the separate regulations of item 3 Article 6 of the Law of Republic of Karelia «About education» the court grounded on the duty of the subject of the Russian Federation at the level to take measures to performance of the international obligations of the Russian Federation.
First, the court has analyzed the regulations of the International pact on economic, social and cultural rights of 1966 according to which the states participating in the pact, shall recognize the right of each person to the sufficient standard of life for him and his family, to continuous improvement of conditions of life; the right of each person to education; shall recognize, that for full realization of the given right there should actively be developed the network of schools of all levels, should constantly be improved material conditions of the teaching personnel (item 1 Article 11, item 1 and sub-item «E» item 2 Article 13).
Estimating the legal situation developed in the republic, the court has come to the conclusion, that the regional legal regulation on granting the privilege on payment of dwelling and municipal services to pedagogical workers in the countryside has lowered the level of the earlier achieved guarantees for the given category of the citizens. Since 1930s, the teachers working and residing in the countryside used dwelling and municipal services free-of-charge. In the process of realization of a new federal social policy, at differentiation of the powers between the Russian Federation and its subjects on maintenance of measures of social support by the Federal Law No. 122 from August 22nd, 2004 financial maintenance and determination of the order of granting of the given measure of social support is transferred to the subjects. The legislator of Republic of Karelia in the disputed norm of the Law «About education» has admitted the opportunity of payment for dwelling and municipal services for the specified category of the citizens.
The Constitutional Court of Republic of Karelia has reflected in the decision, that the considered legal instruction does not only contradict the norms of the Constitution of Republic of Karelia, but also supposes downturn of the guarantees stipulated by the international law, does not coordinate with the above-stated international pact, supposes the opportunity of deterioration of the legal status of the pedagogical workers, can affect the employment of the pedagogical workers in the countryside and, accordingly, shall entail infringement of the constitutional law on general availability of education.
From the given example it follows, that the Constitution of Republic of Karelia and the international law to the same extent have protected the violated right of the citizens of the Russian Federation residing on the territory of the republic. However, the applied on the case for the sanction of the dispute the constitutional norms have more general character: they proclaim the supremacy of the law of the republic, inadmissibility of the contradiction of laws and other legal acts adopted in Republic of Karelia, to the Constitution of the Russian Federation, federal laws and to the Constitution of Republic of Karelia; prevent from restriction of rights and freedoms of a person and a citizen (except for restriction of the given rights by the federal law); guarantee equality of the rights of the citizens. Only due to more concrete norms of the International Pact on economic, social and cultural rights of 1966, not admitting decrease in already achieved level of the social protection, specially protecting rights of the pedagogical workers for the purpose of protection of the right of each person to education, there has become possible not simply positive, but the motivated sanction of the constitutional dispute.
The vivid example of implementation of the international legal norm into the Russian legal system at the level of its subject has become the case about the verification on conformity to the Constitution of Republic of Karelia of the separate regulations of the Law of Republic of Karelia «About social support of the separate categories of the citizens and recognition invalid of some legislative acts of Republic of Karelia» in connection with application of the citizen T.K. Ivanova.
The disputed norm of the specified law provides the necessity of choice by an advantage-receiver a measure of social support on one of the grounds if the same measure of this support would rely to him on various lawful grounds. The similar legal regulation is specified in many federal laws concerning measures of social protection of the citizens («About veterans», «About social protection of invalids in the Russian Federation», «About social protection of the citizens, undergone the influence of radiation, during the accident at the Chernobyl atomic power station «and others). At presence of such legislative practice, nevertheless, it is possible to speak about absence of any constitutional principle, based in the given regulation. Considerable aid in the sanction of the given constitutional dispute has been rendered by the Convention of the International Organization of Labour No. 157 about establishment of the international system of preservation of rights in the sphere of social support (Geneva, June 21st, 1982, came into force for the Russian Federation on September 11th, 1986). According to item 2 Article 8 of the above mentioned Convention if the State — the Member of the Organization — should on the ground of two or several acts grant one and the same person the grants of identical character, and it is obliged to give only the grants meeting the interests of the given person. The given rule established by the international contract, does not simply serve an example at legislative regulation of similar legal relations in the Russian Federation and its subjects, but is also obligatory for application. It is necessary to note, that presence of the similar legal instructions in the federal legislation does not have legal force obligatory for application; and also it does not have principle value for the sanction of the concrete constitutional dispute. The reference to the given circumstance in the resolution of the Constitutional Court of Republic of Karelia has only demonstrative character. The norms of international law applied on the given case, has become fundamental at development of the legal position on the given case. Due to compulsion of the Convention of the International Organization of Labour No. 157 for the Russian Federation in connection with its ratification and its constitutional regulations (Part 4 Article 15 of the Constitution of the Russian Federation and Articles 2, 8 of the Constitution of Republic of Karelia) the court has considered in essence the norm of the regional law in system unity with the federal legislation and norms of the international law. The given case in practice has realized rapprochement and interaction of the two legal systems — the Russian and the international. It is important, that it has been realized at the level of the subject of the Russian Federation.
On the ground of the above-mentioned it is possible to make the conclusion that the regional courts of the constitutional justice really and widely enough use for the argument and reinforcement of their legal positions the conventional principles and norms of the international law and international contracts. Sometimes they make it for completion of blanks in the federal legislation and at «research» of the constitutional sense of the regional laws.
Application of the international legal norms in the process of removal of judgements would be considerably facilitated in case of creation of the interstate statutory-legal base precisely regulating the status of the conventional principles and norms of the international law and establishing their list. The decision of the given problem could be promoted by the development by means of realization of the regulations of Part 4 Article 15, Part 1 Article 17, Part 1 Article 63, Article 69 of the Constitution of the Russian Federation of the federal constitutional law containing the list of the conventional principles and norms of the international law, subjected to application on the territory of the Russian Federation. It has already been mentioned by O.N. Malinovskiy, who offered to establish in the given law, that the conventional principles and norms requiring concrete definition for their effective realization, should be realized in the national legal system with the help of adoption of additional laws.
Adoption of such special law is caused by requirements of practice and is quite natural. With adoption of such law would be assumed the question essentially important for the legal system of the country, and the conventional principles and international norms of common origin formalized in the law would become the major primary international legal source of the national legal system.
Besides it is necessary to systematize the international legal norms and conventional principles which have already been applied in the judiciary practice of courts of the constitutional justice. The example for ordering of the international legal norms applied in the practice of the constitutional (charter) courts of the subjects of the Russian Federation can serve the issued by the institutite of law and the Center of constitutionally legal protection, collection with the summary of resolutions of the Constitutional Court of the Russian Federation which are not only systematized on chapters and articles of the Constitution of Russia but are submitted under headings: «Legal categories in the decision», «Applicant», «Subject for consideration», «Position of the applicant», «Final conclusion of the decision», «Motives of the decision», «International legal documents applied in the Resolution».
The similar statement (or its more reduced variant) about the coordination of the applied in the case norms of the constitutions (charters) of the subjects of the Federation with the applied on the case international legal norms will not simply give the information for lawyers about interaction of the legal systems in the regional constitutional legal proceedings, but will really allow courts of the constitutional justice at working out legal positions to apply the experience in the sanction of the constitutional-legal problems arising on the similar lawful relations. It, undoubtedly, will promote strengthening of the uniform constitutional legality on the entire territory of the Russian Federation, development of the lawful state and protection of the constitutional rights and freedoms of the citizens in accordance with the international legal standards.
international law court constitutional
1. Конституционный Суд Республики Карелия. Сборник документов. Итоги работы за 10 лет. — Петрозаводск, 2004. — С. 234−237.
2. См, например: Тиунов
Он же: О решениях Конституционного Суда Российской Федерации в связи с жалобами граждан на нарушения их конституционных прав и свобод // Российский юридический журнал. — 2006. — № 2. — С. 48−64;
5. Статистические данные сделаны автором на основе материалов, публикуемых в Дайджестах оперативной информации «Акты конституционного правосудия субъектов Российской Федерации», в которых Аппаратом по обеспечению деятельности полномочного представителя Президента Российской Федерации в Конституционном Суде Российской Федерации осуществляется оперативный мониторинг деятельности региональных конституционных и уставных судов, а также Вестников региональных конституционных (уставных) судов.
6. Постановление Конституционного Суда Республики Карелия от 18 ноября 2005 года.
8. Конституция Российской Федерации в решениях Конституционного Суда России. — М.: Институт права и публичной политики. 2005.Показать Свернуть