The constitutional right of citizens to appeal of acts of bodies of the executive power of the Republic Bulgaria
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The constitutional right of citizens to appeal of acts of bodies of the executive power of the Republic Bulgaria
The term Constitution proceeds from the Latin language and means «to establish». In the most general plan the notion Constitution is defined as organization of one generality, one alliance. The State is the most complex alliance, and the Constitution is the main scheme and program of its functioning.
In legal science it is admitted to consider that the term Constitution as the state organization for the first time was used by the Roman orator Cicerone.
The American continent gave the samples of the first constitutions of modern type: the Constitution of the state Virginia of 1776, followed by adoption of the Constitution by other states and the federal Constitution of the United States of America of 1787.
On the European continent in 1791 there were adopted two Constitutions: the Constitution of Poland (May 1791) and the first French Constitution (August 1791).
The First Bulgarian Constitution was adopted on April 16, 1879 by the Constituent assembly c held in Tyrnovo. Then followed the Constitution of 1947 and the Constitution of 1971.
The current Constitution of Bulgaria was adopted on July, 12 1991 by the Great people’s assembly. It contains the norms, defining the bases of the state system of Bulgaria, organization and functioning of supreme state bodies (People's assembly, the council of ministers, the President, the Constitutional Court), bases of economic and public life and legal status of the citizens.
The Constitution of the Russian Federation, adopted by nationwide voting on December 12, 1993 Russia is proclaimed as the democratic federative legal state with republican mode of rule. A person, his rights and freedoms are declared the supreme value of the state. And recognition, observance and protection of rights and freedoms of a person and a citizen are the duty of the state.
The current constitution of Ukraine was adopted on V th session of the Supreme Rada of Ukraine on June 28, 1996. It expresses the sovereign will of the Ukrainian people. This act guarantees the fundamental rights and freedoms of a person and a citizen in Ukraine, defines bases of organization and activity of the system of bodies of state authorities, recognizes and guarantees local self-management. The Constitution is based on the Act of proclamation of independence of Ukraine August 24, 1991, confirmed on December 1 of the same year by nationwide voting.
The current Constitution of the Pridnestrovskaia Moldavskaia Respublika was adopted at the referendum on December 24, 1995 and was signed by the President on January 17, 1996. It defines the Pridnestrovskaia Moldavskaia Respublika as the presidential republic. The political mode is democracy in the process of development which is the guarantee of rights and freedoms of a person and a citizen, providing the exact performance of the Constitution and laws.
The Constitution is the act of the supreme legal force and the rest statutory-legal acts can not contradict it. Correspondence of the laws and other statutory legal acts to the Constitution is the premises for creation of the uniform non contradicting legal system. It means that financial, civil, criminal law and all the rest branches of the law should be created on bases and in accordance with positions of the Constitution, its principles and norms.
The Constitution guarantees fundamental rights and freedoms of a person and a citizen, establishes the system of legal procedures of their protection. The Constitution regulates the bases of state organization. It defines the forms of the government and the structure of the system of the state bodies.
The constitutional principle of division of the powers into legislative, executive and judicial provides efficient functioning of public authorities. Not to allow abuses of power so that each of the branches was controlled by actions of the other two branches of the power, the Constitution defines mechanisms of their mutual checks and balances.
The special attention in the Constitution is emphasized on the principle of equality of citizens. According to the Constitution all people are free and equal in their rights, all of them are equal before law. No privileges or restrictions of rights and freedoms are admitted on the ground of the certain features such as race, nationality, ethnic origin, sex, origin, religion, education, beliefs, and property status. The principle of equality defines at high degree the democratic essence of civil society.
The democratic nature of the Constitution is conditioned by the broad volume of rights and freedoms, given to a person and a citizen by the Constitution of Republic Bulgaria. The list and volume of the constitutional rights and freedoms corresponds to the international standards of human rights.
Other rights and freedoms give that opportunity to the citizens to participate in political life — the right to elect and to be elected, right to association in political parties, the right to participation in mass-meetings and demonstrations and others.
The third group is social-economic rights of a person and a citizen giving the opportunity to participate in economic life — the right to property, right to labour and etc.
Article 45 of the Constitution of Bulgaria provides the citizens to have the right to apply with complaints, to present offers and to apply with petitions to the state organs.
Depending on nature of protected interest the fundamental rights, determined in Article 45, can be personal, political or social-economic. They can be referred to protection of the fundamental rights of the third generation. For instance, the right to favourable environment. Complaints, offers and petitions can be applied separately or as the facility for protection of other fundamental rights. In this sense they can be qualified as procedural guarantees of realization of the fundamental rights and legal interests of the people, and can be considered as the procedural rights.
Depending on subjective nature the right, provided in Article 45, can be both individual, and collective.
Complaints of the citizens assume presence of the direct interest on the part of the bearer, his personal rights or legal interests. Complaints are applied to the bodies of the central state administration or local state bodies. Complaints are applied individually or by a group of the citizens to the state institutes for eliminating of violation of their rights or legal interests. Non anonymous nature of complaints is the obligatory condition of their application.
Unlike complaints presentation of offers is not connected with violation of the fundamental rights. The complaint is transmitted to the competent bodies by a person or a group of the people for the person of improvement of activity of the state body or for the sanction of the question in its jurisdiction.
In accordance with the Bulgarian legislation justice is the state activity, realized by court. The purpose of the judicial power is protection of rights and legal interests of the broad circle of subjects of right, as follows: the citizens, legal persons and the state. Justice is the sanction of legal disputes by court essentially (the justice). It is realized in the name of the people (Article 118 of the Constitution), being, according to Article 1 Paragraph 2 of the Fundamental Law, the source of the whole power in the state.
The Constitutional Court considers that Positions of Article 120, Paragraph 2 comprise two constitutional norms different on its nature.
First — procedural — legal. Second — materially-legal, it defines the constitutional criteria of the possibility of the judicial appeal of administrative acts. In this sense the procedural interest is legitimized by the circumstance, when in the concrete case there have been violated or put under threat rights or legal interests of the corresponding physical or legal persons. Listing of legal persons as subjects of the right to judicial appeal justifies listing of the norms, fixing it in Chapter Sixth of the Constitution of Bulgaria, since in systematic attitude it could refer to chapter second of the Constitution.
The question about judicial supervision over administrative acts is solved by norms of Article 120 of the Constitution. According to Paragraph 2 from the list of administrative acts, which can be appealed in court, there can be excluded «clearly specified by law». The same constitutional norm does not contain the criteria, which call in question the given right of the people’s Assembly (the Decision No. 18 1997 on constitutional case No. 12 1997 — D.V. 110 from 1997).
The Constitutional Court has repeatedly emphasized that the lawmaker can exclude from judicial order appeal of administrative acts only when this exception does not infringe constitutionally recognized fundamental rights and freedoms of the citizens or when other higher, clearly proclaimed by the constitution value should be priority protected. Such, for instance, is the sphere of national safety (the Decision No. 5 1997 on constitutional case No. 25 1996 — D.V., 20 from 1997.).
This, however, does not mean that on the internal administrative hierarchical order that whom this concerned, can not on the ground of Article 45 and Article 56 of the Constitution (these norms have the direct action according to Article 5, Paragraph 2 of the Fundamental Law) give their own arguments before the higher administrative authorities. This conclusion proceeds from the general principle of subordination in the field of administration. Directly higher administrative authorities can always cancel the acts of subordinate to him bodies of management by virtue of the right of official interdepartmental control and without presence of the certain norm of the law. This also is the form of protection of the person, whom it concerns. The Constitutional Court in the Decision No. 3 on constitutional case No. 1994 1 1994 (D.V., No. 49 from 1994), explaining the right to protection according to Article 56 of the Constitution, has indicated as the forms of its realization not only appeal in court, but also «complaints, oral and written objections and explanations».
The acts, infringing rights and personal interests of the citizens, can be appealed according to instructions of the Administrative-Procedural Code (APC), changed in the State bulletin No. 30 from April 11, 2006. And come into force from July 12, 2006. It is the statutory act, which protects rights and personal interests of the people of the Republic Bulgaria. This APC regulates protection of the rights of the citizens concerning the acts, published by the bodies of state management. The current Law about administrative infringements and punishments remained outside the framework of the Administrative-Procedural Code and its purpose is to protect rights of the citizens concerning the assessed on them punishments and in accordance with law.
The Administrative-Procedural Code enables the citizens to protect their own rights in two ways. The first way is according to administrative order, i.e. the dispute is solved by the higher administrative body. The second way is in the order of judicial proceedings. In condition of the legal state in Republic Bulgaria there was restored activity of administrative trial on judicial district and supreme administrative court. Before adoption and coming into force of APC there acted several laws, acting in the way procedural before cancellation. Protection of rights of the citizens in order of judicial proceedings is considered on the stage of two instances. There is the third instance — at the supreme administrative court, regulating APC as «cancelling of come into force», which terminates the process — protects right of the citizens in this field. On unsatisfactory decision of the court there is not excluded the possibility of the citizen’s application to the European Court on Human Rights.
The Constitution of Republic Bulgaria proclaims the fundamental principles of development of the democratic civil society. The given principles are legal norms of the highest rank.
It is provided that each citizen can apply for protection of their own rights and legal interests, when they are infringed. And refusal of the corresponding body to provide protection shall be inadmissible.
The main defect in development of our society is that the citizens seldom use the opportunity, which is given to them by the Constitution and laws for protection of their own rights.
The Fundamental Law of the state and the whole legal system guarantees life, dignity and rights of a person. All conditions for free development of a person and a civil society are created.
The problem of providing of public safety has complex, multi-sided character: it is possible to speak about economic, political, organizational aspects of providing of public safety. At the same time the right can not remain back from working out of problems of safety. Moreover, the leading role should belong to the legal aspect.
Considering the problem in the sphere of the constitutional justice, shall try to answer question how the Constitutional Court of Republic Karelia promotes perfection of legal regulation of public safety in the Republic.
In the Law of the Russian Federation «On safety» the concept of safety is interpreted as the state of protection of vitally important interests of the person, society and state from internal and external threats. An aggregate of necessities which satisfaction strongly provides existence and possibilities of progressive development of the person, society and the state. According to the above mentioned law the basic objects of safety are: the person with the rights and freedoms; the society with the material and spiritual values; the state with the constitutional system, sovereignty and territorial integrity. The subjects of providing of safety are: the state, realizing the functions in this sphere through the bodies of legislative, executive and judicial authorities, and the citizens, public and other organizations and associations, possessing rights and duties on participating in providing of safety in accordance with the legislation of the Russian Federation, its subjects, adopted within the limits of their jurisdiction in the given sphere.
According to the Law of the Russian Federation «On safety», the legislative bases of providing of safety of the person, society and state are the Constitution of the Russian Federation, constitutions of the subjects of the Russian Federation and other statutory legal acts, adopted within the limits of jurisdiction of the corresponding bodies in the given sphere, and also international agreements and contracts, concluded or recognized by the Russian Federation. Sharing the point of view of Judge of the Constitutional Court of the Russian Federation N.S. Bondar that in the system of legal facilities of the balanced providing of safety of the personality, society and state the deciding value shall have the constitution, and the safety acquires accordingly the constitutional features and becomes constitutional safety, therefore it is possible to draw the conclusion, that the concept «safety» is the constitutional category.
Constitutional safety is, foremost, providing of protection of the bases of constitutional system, rights and freedoms of a person and a citizen, and, it means that constitutional safety can be provided at full solely at effective control on observance of the bases of the constitutional system and all its elements.
Judicial and constitutional control, included in the basic elements of the given system, presented by the activity of the Constitutional Court of the Russian Federation and constitutional (charter) courts of the subjects of the Russian Federation, is the special universal institute of guarantee of constitutional safety.
The feature of the legal proceeding of the Constitutional Court of Republic Karelia is that any citizen can apply to the Constitutional Court of Republic Karelia, if considers that his right can be infringed by the adopted law, decision or resolution of the bodies of the government of the Republic. The citizen can apply to the Constitutional Court with the constitutional public complaint when the prospect of infringement of his right, and the right of another person or a group of persons has appeared. This right is stipulated neither in the Federal Constitutional Law «About the Constitutional Court of the Russian Federation» nor in laws about the constitutional (charter) courts of other subjects of the Russian Federation. The right to the constitutional public complaint is given only by the Law of Republic Karelia «About the Constitutional Court of Republic Karelia» that has enormous influence on providing of constitutional safety in the Republic.
The Constitutional Court of Republic Karelia, being the judicial body of the constitutional control, possesses the special state-imperious powers, allowing to make decisions of obligatory character, and legal positions stated in them are normative. When the Constitutional Court recognizes unconstitutional certain positions of the normative legal act, it means the so-called «negative law-making». When it recognizes constitutionality of positions of the examined normative legal act, it is the «positive legislator». But in all cases the Constitutional Court realizes finally the function on settlement and removal within the framework of the set of constitutional procedures of contradictions and conflicts, related to the observance and protection of rights and freedoms of a person and a citizen, with the problems of social justice and equality, violation of balance of private and public interests, trenching upon the bases of constitutional system.
It is enough to state that practically in each case considered by the Constitutional Court of Republic Karelia there are this or that aspects of safety of citizens or society. It is evidently demonstrated in decisions, adopted by the Constitutional Court of Republic Karelia, allowing not only to estimate the state of constitutional safety in the Republic but also to offer taking into account the formed by the Constitutional Court legal positions certain approaches to this problem.
During the last years in the context of constitutional safety the special place in activities of the Constitutional Court of Republic Karelia belongs to consideration of applications of citizens in the sphere of protection of social rights, providing social safety and stability of development of the society. In particular, repeatedly there have been exposed to judicial constitutional control the norms of law, their separate legal Instructions of the Law of Republic Karelia from December 17, 2004 No. 827-ЗРК «About social support of separate categories of citizens and recognizing lost force of legislative acts of Republic Karelia», which has caused the certain social tension in the Republic.
The Constitutional Court of Republic Karelia, deciding the cases about the verification of constitutionality of the above mentioned Law by means of the given to it powers, has formulated legal positions on the given issue having the substantial value for pursuing the uniform social policy on the territory of the Republic and providing at the decision of the given questions of constitutional principles of equality and justice in accordance with the confessedly uniform internal legal standards.
In particular, the Constitutional Court has recognized not corresponding to the Constitution of Republic Karelia the legal order of the above mentioned republican Law, allowing to lay part of charges on maintenance of habitation with heating and illumination on teachers-pensioners, having worked no less than ten years as teachers in the public institutions located on the territory of Republic Karelia in rural districts. Such decision of the Constitutional Court is grounded on the principles of the legal state, equality and justice, concerted action of legal norms in the system of the working legal regulation, coming from the aims of providing of supremacy of the Constitution of the Russian Federation, uniform legal space. The Constitutional Court of Republic Karelia has come to the conclusion that the right of the persons of the given category to free habitation with heating and illumination, guaranteed by the federal statutory legal acts given during many years and not abolished federal public authority, is working and should be given by the republican authorities in the former volume till the proper legislative settlement of the questions on the order of granting and financing of the given privilege at the federal level. Thus, on this case the large group of teachers-pensioners has been recovered in the rights to the privilege on payment of habitation with heating and illumination.
In the Constitutional Court of Republic Karelia there have repeatedly been put questions about the insufficient volume of measures of social support on payment of habitation and public utilities, given to the workings teachers, medical and pharmaceutical workers, social workers, specialists of establishments of culture, and to all above mentioned specialists, retired.
As a result of system analysis of the legal regulation, connected with bringing the system of social protection of citizens enjoying privileges and other social guarantees, in accordance with the principle of division of powers among the federal public authorities, bodies of government of the subjects of the Russian Federation and bodies of local self-management, and fixing the principle of independence of budgets of all levels, the Constitutional Court has mainly recognized the verified statutory legal acts of bodies of government of the Republic and bodies of local self-management corresponding to the Constitution of Republic Karelia.
In particular, the Constitutional Court has established that Republic Karelia had the right in its law to f provide additional measures of social support and social aid for the separate categories of citizens coming from the financial possibilities. It has voluntarily undertaken that obligation on granting additional measure of social support to pensioners, who have to worked in rural districts and settlements not less than ten years as doctors, pharmacists, medical or pharmaceutical workers having secondary education, in the form of payment of dwelling with heating and illumination within the limits of social norm of area of habitation, regional standard of payment of habitation and public utilities and norms of consumption of public utilities and fuel, coming from the level of real economic possibilities, that can not be considered as violation of rights of the citizens of the given category (Resolution of the Constitutional Court of Republic Karelia from July 21, 2006).
As to the specialists of municipal establishments of Kondopoga district (doctors, pharmacists, workers having secondary medical and pharmaceutical education, social workers, specialists of establishments of culture) the Constitutional Court in the Resolution from August 23, 2006 recognized municipal statutory legal acts regarding regulation the specified legal relations not contradicting the Constitution of Republic Karelia, having specified that they are adopted in accordance with the federal legislation within the limits of powers of bodies of local self-management, possibilities of local budget taking into account the financial aid granted from the budget of Republic Karelia.
The Constitutional Court of Republic Karelia informed Minister of health care and social maintenance of the Russian Federation M. Yu. Zurabov about the situation developed in Republic Karelia at which specialists in rural districts, including pensioners, appeared at different degree protected by the guaranteed by the federal legislation measures of social support, having sent him the copies of court decisions on the given question. The court specified that skilled specialists in rural districts from the category of the citizens equally protected by the state, after January 1, 2005 appeared differentiated on the degree of their social protection that has caused social tension in the Republic.
The decisions of the Constitutional Court of Republic Karelia contain guidelines of perfection of law making and law enforcement activity of public and organs of local self-management in Republic Karelia in the sphere of protection of social rights.
Thus, for example, there have been corrected separate positions of item 1 of the Resolution of Government of Republic Karelia No. 7-П from February 7, 2005 «About the forms of granting of measures of social support on payment of housing and public utilities, rendered to the citizens, exposed to radiation during the catastrophe on Chernobyl Power Station, accident at enterprise «Mayak» «and nuclear tests at Semipalatinsk ground and to the separate categories of citizens from a number veterans and invalids, and about the order of financing of the charges» and s separate positions of item 10 of the Order of financing of these charges confirmed by the specified Resolution of the Government of Republic Karelia. According to the sense of the disputed legal orders, invalids, having the right to social support as discount at the rate of 50 percents of cost of fuel and its delivery, provided by the federal law, had been forced, nevertheless, to get the fuel for the overall cost, whereupon to apply to the bodies of local self-government with the application about the compensation of the due sums, enclosed with the documents about payment of fuel and its delivery.
However not all invalids for providing their vital activities have real possibility to purchase fuel and pay his delivery within the limits of the set norms for an overall cost. The court has specified that the Government of Republic Karelia should provide such legal mechanism of granting of measures of social maintenance as the discount of 50 percent of the cost of fuel (the question was about firewood) and its delivery, which would allow the specified group of invalids to realize this privilege on the ground of the simplified legal procedures, providing time receipt of privilege in full.
The above mentioned republican Law No. 827-ЗРК and other republican statutory legal acts were adopted in development of the «long-suffering» Federal Law from Augusts 22, 2004 No. 122-ФЗ. There has taken place the redistribution of powers on realization of measures of social maintenance from the federal center to the regions, the considerable part of which, including on establishment the concrete measures of such maintenance, has been transmitted to the subjects of the Russian Federation. In the report at the scientific conference «Social rights and activities of the Constitutional Court of the Russian Federation» taking place in June of the current year in St. Petersburg Chairman of the Constitutional Court of the Russian Federation V.D. Zorkin stated that the federal legislator, having transmitted part of powers in the sphere of social maintenance to the level of the subjects of the Russian Federation and municipal units, has not at the same time set their jurisdiction with sufficient definiteness, has not provided the principles of the new legal regulation and minimum standards guaranteed to the citizens regardless of residence. There has not been set the effective financial mechanism, providing realization of uniform state social policy and redistribution of facilities of budgets of all levels for the purpose of saving of the attained level of social maintenance. Moreover, there has appeared the danger of decline of the attained level of social maintenance for all categories of privileged persons, and especially for those categories of citizens whose social maintenance has been earlier realized at the federal level, and from January 1, 2005 is realized at the level of the subject of the Russian Federation or at the level of the municipal unit. So, for the veterans of labour and victims of political repressions there have been abolished all privileges or part of privileges which they have got earlier in natural form (exception is Moscow).
On the whole the legislation regulating one of the major spheres of activity of the social state appeared to great extent contradictory, indistinct and blank. The arbitrary actions of the legislator in such an important and delicate sphere, as the sphere of social rights are inadmissible as are directly connected with safety and political stability in society.
Therefore the Constitutional Court of Republic Karelia, considering the cases about the verification of constitutionality of laws and other statutory legal acts within the framework of their powers, creates guide lines for the republican legislator, promoting progressive advance, including the social legislation, in order not to admit arbitrary, groundless refusal from granting measures of social maintenance and at the same time to take into account economic and financial opportunities of the Republic, and thus, provides constitutional safety of the person, society, state.
The threat to the constitutional safety is also presented by the vagueness of legal norms that can be examined as the denial of equality of citizens. From the point of view of removal of the given uncertainty of the disputed norms or of their separate positions in the question, whether they correspond to the Constitution of Republic Karelia, the results of consideration of applications have the identical value both in the case of recognition of the legal orders corresponding to the Constitution of Republic Karelia and in the case of recognition them unconstitutional. In both cases the normative regulation and practice of law enforcement are sent to the constitutional legal direction, as in any case the court reveals the constitutionally-legal sense of the verified norm and gives interpretation of its legal contents, obligatory both for the body, that adopted the statutory act and for all the subjects applying this act. Thus there appears the removal of uncertainty in understanding of the norm, directed to the uniform application and, as a result, to the exception of possible infringement of rights and freedoms of the citizens.
As an example we can show the considered by the Constitutional Court of Republic Karelia the case about the verification for correspondence to the Constitution of Republic Karelia of some positions of Paragraph 2 item 1 Hunting rules in Republic Karelia.
In the opinion of the citizen, applying to the court, the uncertainty of the disputed norm contained in that on its literal sense any appearance with a hunting gun on the roads of the common use is equated with the production of hunt, although the presence of the hunting gun on the roads does not relate to hunt.
Getting the clear idea of the sense of the specified legal regulation, the Constitutional Court, along with the recognition of the disputed norm constitutional, has worked out the legal position according to which the order of the disputed norm regarding indication to the roads of the common use is distributed on the part of roads of the common use, passing through the territory of hunting lands. Only in this sense it is necessary to understand and to apply the disputed norm of hunting rules in Republic Karelia, equating with the production of hunt the presence of the hunting gun on the roads of the common use. In all the other cases, presence of the hunting gun on the roads of the common use outside the hunting lands is regulated by other statutory legal acts within the framework of other legal relations.
One more characteristic example is the case about the verification for correspondence to Constitution of Republic Karelia of the Law of Republic Karelia from February, 6, 2006 No. 957-ЗРК «About the gratuitous transfer of the state property of Republic Karelia in ownership of Spaso-Preobrazhenskiy Valaamskiy stavropigialny monastery». According to the given Law, the monastery was given building of the Winter hotel in which there have been disposed the municipal school, dwellings and other objects of social setting. The Constitutional Court of Republic Karelia, having recognized the adopted Law constitutional, verified, whether the given law does not infringe the constitutional rights for the citizens on different grounds of using by the passed property, on education, on dwelling, on freedom of religion. The judicial act made in the process of the constitutional legal proceeding on the given case settles not only the concrete constitutionally-legal dispute but also provides the lasting legal protection of the above mentioned constitutional rights of the population, living on the island of Valaam.
Thus, the Constitutional Court of Republic Karelia is the special universal institute to guarantee constitutional safety of the person, society, state.
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