On the Lawmaking Matters of the Acts of the Constitutional Court of the Russian Federation

Kokotov Alexander N., Doctor of Law, Professor, Justice of the Constitutional Court of the Russian Federation, Russia

The article shows the originality of the law-making activity of the Constitutional Court of the Russian Federation, acting not only as a “negative” but as a “positive” legislator; discloses the law-making aspect of its decisions in proceedings on the interpretation of the Constitution and the review of the constitutionality of acts passed by different branches of power. An important point is that rulings and decisions of the RF Constitutional Court in some cases are the means to identify and legalize other sources of law, including constitutional conventions.

Key words: Constitutional Court, the Constitution, lawmaking, interpretation, constitutional judicial interpretation, implementation, a source of law.

The Constitutional Court of the Russian Federation, acting within its competence, participates in adjustment of the country’s normative sphere by individually and independently exercising its judicial powers through constitutional proceedings. Its final decisions resulting from these proceedings, being obligatory and conclusive in essence, constitute a peculiar source of law including individual and normative prescriptions.

1. The peculiarity of the RF Constitutional Court’s lawmaking activity displays itself in that it is not aimed at the direct regulation of social relations. Instead, its purpose consists in maintaining the conformity of current legislation with the constitutional provisions in order to ensure its appropriate application. In certain cases, the Court uses the direct regulation as a temporary measure, which loses its effect at the moment regulations conforming to the constitutional standards are enacted by a competent authority.  

  For instance, in its Ruling dated January 17, 2013, the Court found a provision of the Code of Administrative Offenses of the Russian Federation incompatible with the Constitution. This conclusion was reached because under the provisions of the Code in force at that time,  which  did not permit  imposing an administrative penalty under the lowest limit, the minimal fine established by the norm in question did not always allow to impose  a just and proportionate penalty  that would take into account the essence of the violation committed, the material and financial status of a legal entity involved and other significant circumstances of the case. In this Ruling, the Court concluded that the sum to be paid by a legal entity as a penalty for the offence stipulated by the disputed norm can be reduced by the antimonopoly authority or by the court on the basis of constitutional requirements and legal positions of the Russian Constitutional Court stated in the Ruling under consideration. The Court also limited the validity period of this procedure. It was to remain in effect until the introduction of corresponding amendments to the RF Code of Administrative Offences. This approach can also be illustrated by some of the RF Constitutional Court`s decisions which found various norms or acts incompatible with the Constitution, but did not invalidate them. Instead, these norms remained in effect for a specified period with specified requirements. In its Ruling  of July 14, 2005 the Court adjourned the invalidation of the RF Finance Ministry’s rules on enforcement of court decisions satisfying claims for damages that were caused by unlawful actions or omissions of state authorities or their officials until the beginning of a new financial year.

Considering the above, normative instructions of the Constitutional Court as a rule are not directly prescribed by the latter but can be identified in the current legal environment as a result of interpretation of constitutional provisions or of the Court`s constitutionality test of other acts. Such a way of lawmaking is essentially interpretative (sometimes it is called application of laws). Consequently, it limits the lawmaking activities of the Constitutional Court and differs from the primary (norm- proclaiming) lawmaking method^[1]. By the way, this means that legal positions of the RF Constitutional Court based on the interpretation of constitutional provisions must follow their fate if the system analysis of constitutional norms performed within the framework of constitutional legal proceedings leaves no room for a different conclusion. At the same time, the activity under consideration is obviously lawmaking as long as it is aimed at changes in the legal sphere. The latter process consists in eliminating unconstitutional regulations from the current legislation and also in introducing new positive rules.

2. The negative lawmaking also has a positive effect. The Court’s finding on unconstitutionality of a norm is an individual instruction that stops its applicability and, at the same time, a circumstance that initiates the activities of corresponding bodies aimed at excluding the named provision from the legislation in force. In this way, the Constitutional Court in fact uses the power to establish a general prohibition to use the kind of regulation that was found incompatible with the Constitution. This obviously is a way to specify the lawmaking competence of the authority that has adopted the act found to be unconstitutional. For instance, in its Ruling of April 23, 2004,  the Constitutional Court found provisions of two laws on federal budget suspending  application of several norms of Federal  Law “On the Accounts Chamber of the Russian Federation” incompatible with the Constitution: in view of the requirements of the Constitution, the Accounts Chamber’s powers and rules of procedure could not be changed by laws on federal budget if they had been set up by other federal laws.

The more precise definition of lawmaking authorities’ competence is also achieved through establishment of conformity of their legal acts with the Russian Constitution by the Constitutional Court’s decisions. These decisions constitute the general approval for rules conforming to the Constitution or similar regulations. 

3. Declaring legal acts compatible with the Constitution, the Court often elaborates their constitutional judicial interpretation. According to the Court’s Chairman, V. D. Zorkin, in practice the Constitutional Court tries to avoid declaring a  disputed provision unconstitutional, provided there is a possibility to establish the  norm’s constitutional legal meaning and in its context the norm’s proper content that would exclude any other interpretation in the application  of the act in question^[2]. Constitutional legal interpretation of acts under review may sometimes cause significant changes in the literal meaning of the act under consideration and the meaning attributed to it by an official and other interpretations or prevailing practices of its application.   

Paragraph 2 of Article 1070 of the Russian Civil Code was found not contradicting the Constitution. This norm declares that damages caused in the course of administration of justice shall be compensated if the guilt of the judge is established by a legally binding judgment of a competent court. However, the Constitutional Court noted that the norm viewed in its constitutional legal sense and also in its interconnection with Articles 6 and 41 of the Convention for the Protection of Human Rights and Fundamental Freedoms could not serve as a ground allowing  authorities to deny  the compensation of damages caused within the framework of civil proceedings in other  cases  (namely, when a dispute was not decided on its merits) resulting from unlawful actions (or omissions) of a particular court (a judge), inter alia in the case requirements concerning the duration of proceedings were  violated  provided the judge was held responsible for the violations by a court decision other than a court sentence. The interpretative nature of the above-mentioned constitutional judicial conclusion leaves room for legislative amendments to provisions reviewed by the Constitutional Court by choosing other ways to compensate damages inflicted in the course of administration of justice. However, during the process of introducing changes, the legislator cannot depart from the essential legal position of the Constitutional Court.

4. Competence of the Constitutional Court of the Russian Federation includes the power to give official interpretation of constitutional provisions. The latter are so rich in substance^[3] that their constitutional judicial interpretation results in introduction of special normative rules between the constitutional provisions and the social practice of intermediary normative regulations concretizing the constitutional text. In its Ruling of October 31, 1995, the Constitutional Court while interpreting Article 136 of the Constitution concluded that amendments to the latter should be introduced through the adoption of a special legal act – the Law of the Russian Federation on     Constitutional Amendment. This concept had been taken into consideration by the legislator that established the regulation of the process of adopting such acts. At present, several laws of that kind have been introduced, including those aimed at changing the constitutional model of the country’s court system. 

In its Ruling of November 28, 1995, the Constitutional Court of the Russian Federation gave the interpretation of Paragraph 2 of Article 137 of the RF Constitution. The Court noted that a new name of a constituent entity of the Russian Federation shall be included in the text of Article 65 of Russia’s Constitution through the President’s decree adopted on the basis of the decision made by that entity’s authorities in accordance with a procedure established by them. At the same time, the interpreted norm states only that new name of a constituent entity of the Russian Federation shall be included in the text of Article 65 of the Constitution. Moreover, the Constitutional Court found that the renaming connected with the fundamentals of the constitutional regime, human rights and civil liberties, interests of other constituent entities or of the Russian Federation in general, those of foreign countries and also assuming changes in the composition of the Russian Federation or of the constitutional status of its constituent parts could not be considered a change of the constituent part’s name. In conclusion, the Constitutional Court added that the opportunity of extra regulation on the issue of including the new name of a constituent part of the Russian Federation in the text of the Constitution was not excluded by the mentioned interpretation. The supplementary nature of legislative regulation in relation to constitutional judicial interpretation was obviously stressed.

5. The Constitutional Court also has recourse to the detailed interpretation of the Constitution of the Russian Federation, discovering new ways to understand its provisions not only during the official interpretation procedure but also controlling constitutionality of normative legal acts, resolving disputes among public authorities. For example, by certain decisions reached while reviewing an individual norm the Court was consistently expanding the right to submit a constitutional complaint. This effect was produced by interpreting such constitutional concepts as “citizens” (applicants presenting a constitutional complaint) and “law” (a legal act that can be reviewed through such a procedure). According to conclusions of the Constitutional Court, a constitutional complaint can be submitted by citizens of the Russian Federation as well as by foreign citizens and stateless persons ( Ruling   of  February 17, 1998), representatives of the incapacitated (Ruling of  February 27, 2009), legal entities, including state institutions to the extent constitutional rights and liberties apply to them, for instance  when  they can be viewed as taxpayers (Rulings: of  October 24, 1996; of October 12, 1998;  of June 22, 2009). The term “law” is contained in Paragraph 4 of Article 125 of the Constitution, its broad interpretation by the Constitutional Court extended the meaning of the named notion to such other legal acts as: enactments on amnesty issued by the State Duma (Ruling of July 5, 2001), governmental and presidential decrees dedicated to issues that had been directly specified by the legislator as unregulated by statutes (Ruling of January 27, 2004; Decision of March 5,  2009).

6. Within the framework of its activity consisting in official interpretation of constitutional norms and implementation of the latter, in order to resolve other constitutional judicial disputes the Constitutional Court views the Constitution of the Russian Federation as a constantly developing regulation (a living organism). Its authentic introduction in the evolving social context leads to changes in constitutional judicial interpretation. This does not mean that by interpreting provisions of the Constitution the Constitutional Court has the right to adapt it to the political climate. This approach   signifies that preservation of the “spirit” of the Constitution and of the balance of values that it protects does not exclude certain modifications in the named interpretations due to considerable changes in socio-historical conditions. According to V.D. Zorkin, this function of the Court can be defined as the formation of constitutionally justified appropriateness^[4].

An opportunity of practicable choice of constitutional text interpretations, of methods for applying constitutional standards to objects under review depending on circumstances of time and place makes up a component of effective constitutional judicial lawmaking. If the process of law making does not imply any discretion in the sphere of choosing an appropriate regulatory model, it should be viewed as minimalistic in nature. This conclusion applies to every type of lawmaking activity, including those connected with constitutional justice. However, any clear criteria of permissibility of modifying   constitutional text interpretations are currently unknown to doctrine or practice. The same applies to the problem of establishing limits of constitutional judicial discretion.

7. The Constitutional Court’s decisions form a significant channel for introducing legal positions of international judicial authorities into Russian law. Therefore, by specifying conclusions of the European court of Human Rights as regards their compatibility with particularities of Russian legislation and of its own decisions, the RF Constitutional Court solves the problem of implementing provisions of the Convention on Protection of Human Rights and Fundamental Freedoms and of the European Court’s resolutions into Russian legislation. Consequently, the Constitutional Court’s legal positions can be considered as an instrument similar to general measures on execution of the European Court’s resolutions if the latter are not just seen as procedures for enforcement of certain rulings in cases to which Russia was a party.      In its Ruling  of December 6, 2013, the Constitutional Court reviewed the provisions of subparagraphs 3 and 4 of paragraph 4 of  Article 392 and of  Article 11 of  the Civil Procedure Code of the Russian Federation to the extent they constituted a ground to reexamine a court  judgment after the European Court’s found  a violation of the Convention on Protection of Human Rights and Fundamental Freedoms that had been committed in respect of the applicant and had been voiced in the named award, provided any infringement of that person’s constitutional rights within the framework of the case in question was not established by Russia’s Constitutional Court, and certain norms of national legislation that had been serving as a basis for the latter Court’s conclusion were considered to be incompatible with the mentioned Convention by the European Court of Human Rights.

As a result, the Court stated that as long as in the course of constitutional judicial proceedings the provisions in question are found conforming to the RF Constitution, the Constitutional Court within the framework of its competence should define the possible constitutional ways of executing the judgment passed by the European Court of Human Rights. What should be taken into account is that a national court of general jurisdiction cannot refuse to reconsider the judgement having come into force as a procedural stage stipulated also by the ruling of the ECHR

Previously, the Chairman of the Constitutional Court of the Russian Federation, V.D. Zorkin, came the  up with  the initiative to confer to the named Court the power to establish necessity and define the essence of general measures that could be taken on account of  enforcing the European Court’s judgment. Such an authority was to be created on the basis of requests of Russia’s Parliament or Supreme Courts^[5].

8. The Constitutional Court’s resolutions represent an instrument of objectivation and legalization of other sources of law. The Constitutional Court, as it is stated above, has deduced the necessity to include the law on the constitutional amendment in the hierarchy of statutes from the constitutional norms.  The practice of the constitutional justice provides similar examples.

In its Decision of November 19, 2009, the Constitutional Court specified that on the basis of the RF Constitution and other legal acts concretizing its provisions, death penalty had not been imposed and executed for a long time. The Court came to the conclusion that such a long moratorium on death penalty had formed stable guaranties of the right not to be subjected to death penalty and also established a legitimate constitutional legal regime -   as a result of Russia’s obligations within international trends – within which  an irreversible process directed at the abolition of death penalty as an exceptional measure of punishment is taking place. Such punishment is of temporary nature and can be implemented only during a certain period of time until its complete abrogation. This conclusion can obviously be considered as legalizing the constitutional practices in the country. 

9. Decisions of the Constitutional Court constitute not only legal but also pre-legal sources of law that encourage the legislator and other lawmaking authorities to introduce necessary amendments in current legislation and provide concepts for such innovations. Apparently, this way to promote the legislative amendments is more appropriate for the Constitutional Court of the Russian Federation than the implementation of its power of legislative initiative. In its Ruling dated February 28, 2008 the Court stated that establishment a system of special disciplinary courts that would consider applications against judges could serve as a safeguard of the independence of judicial authority. Reacting to this recommendation in 2009, the legislator adopted the Federal Law “On Disciplinary Judicial Tribunal”. The latter authority has been replaced by the Disciplinary Board of the Supreme Court of the Russian Federation.

The Constitutional Court of Russia also possesses other opportunities for initiating changes in the country’s normative sphere. It regularly informs other highest state authorities about its activities, practices concerning the execution of its decisions, current problems of legal regulation. By its Decision of November 7, 2012, the Court adopted the Survey “On Constitutional Aspects of Improving Lawmaking and Practice in the Sphere of Securing and Protecting Human Rights and Civil Liberties (on the basis of the Court’s decisions that were delivered in 2009 – 2011)”.

Bibliography:

1. G.A. Gadzhiyev. Ontologiia prava [Legal Ontology]. Moscow, 2013, p. 204.
2. N.S. Bondar. Sudebnyi’ konstitutsionalizm v Rossii [Judicial Constitutionalism in Russia]. Moscow, 2001, pp. 128 – 136.
3. V.A. Sivitsky. K voprosu o variativnosti formuly itogovogo resheniia konstitutsionnogo suda [On the Question of Variability of the Constitutional Court's Final Award Formula] // Konstitutsionnoe pravosudie [Constitutional Justice]. 2012, No. 4, pp. 81 – 90.
4. V.D. Zorkin. Konstitutsionno-pravovoe razvitie Rossii [Constitutional Legal Development of Russia]. Moscow, 2011, p. 183.
5. V.D. Zorkin. Sovremennyi’ mir, pravo i Konstitutsiia [Modern World, Law and Constitution]. Moscow, 2012, p. 148.
6. V.D. Zorkin. Vzaimodei’stvie natsional’nogo i mezhdunarodnogo pravosudiia: novye perspektivy [Current Interaction of National and International Justice: New Prospects] // Sravnitel'noe konstitutsionnoe obozrenie [Comparative Constitutional Review]. 2012, № 5, p. 51.