Constitutional control – activities of special or authorized bodies state, which has as its goal the identification and suppression, up to and including repeal, of laws and other legal acts inconsistent with the constitution. Constitutional control presupposes that the relevant bodies (officials), having discovered an act that violates the constitution, have the authority to repeal it.

Constitutional review– the activities of authorized bodies in order to identify unconstitutional acts with subsequent notification of this to the bodies that adopted them or are planning to do so.

The objects of constitutional control (supervision) can be constitutional and ordinary laws, amendments to the constitution, international treaties, regulations of parliament or its chambers, regulations executive bodies authorities - government decrees, presidential decrees.

IN federal states The object of constitutional control (supervision) is also the issues of delimitation of competence between the union and the subjects of the federation and the resolution of disputes between these subjects.

The subjects of constitutional control are government bodies, officials, and citizens who have the right to inquire about the constitutionality of a particular act.

Types of constitutional control bodies:

1) Political constitutional control is not specialized bodies;

2) Judicial constitutional control. It is divided into:

- American system where the constitutionality of laws and other acts is checked by judges general jurisdiction when considering specific cases;

– European system, specialized bodies of constitutional control are created. They can be either judicial (bodies of constitutional justice) or quasi-judicial (Constitutional Council in France).

Types of constitutional control:

Preliminary (when authorized bodies give their conclusions on the conformity of certain acts with the constitution before they enter into force) and subsequent (the dispute about the constitutionality of a particular act is considered only after this act has entered into force). Laws and other legal acts recognized as unconstitutional either immediately cease to be in effect, or are prohibited from publication (and, therefore, do not enter into force), or, finally, they remain in the statute books, but cannot be applied by courts and other state bodies. Solution specialized body constitutional review is final and not subject to appeal.

Concrete and abstract constitutional control. In the first case, the decision is made in connection with a specific case, in the second it is not related to such a case.

Mandatory and optional control (mandatory, subject to certain types laws, for example all organic laws in France before they are signed by the president; optional is carried out only in the event of an initiative declared by an authorized subject).

Decisive and advisory control (in the latter case the decision is not binding on the relevant authority).

From the point of view of applying the decisions of the body of constitutional control, they distinguish between decisions that have retroactive effect, and decisions that apply only after its adoption.

According to the subject of implementation: internal (carried out by the body that issued the act) and external (by another body).

The body of constitutional control (supervision) can either recognize the contested act as unconstitutional in whole or in part, or recognize it as consistent with the fundamental law.

Let's explore models and types of constitutional control (supervision) in foreign countries Oh.

Constitutional control and supervision- this is an activity to ensure compliance with the constitution of various legal acts, as well as actions government agencies and their officials, other subjects of constitutional and legal relations.

The idea of ​​constitutional control formed in Great Britain in the 17th century, and in modern form it originated in the United States in 1803 (as part of the Marbury v. Madison case). It was subsequently implemented in many countries, and after the First World War a European model of constitutional control and supervision was formed.

In the process of development of this institute, two models of constitutional control: European and American.

European model of constitutional review implemented by specialized judicial authorities(for example, the Constitutional Tribunal in Spain) or quasi-judicial bodies constitutional oversight(For example, Constitutional Council in France).

American model involves the participation of all courts of general jurisdiction (as in the USA and Argentina) or only Supreme Courts of General Jurisdiction (as in Australia and India).

In theory there are different approaches To classification of the main types of constitutional control.

1. Depending on implementation time:

- preliminary control(carried out before the decision or law comes into force);

- subsequent control(carried out in relation to existing acts).

2. Depending on place of implementation:

- internal supervision(carried out by the body that issued this act);

- external supervision(conducted by another body).

3. Depending on legal consequences :

- advisory supervision(the decision of the constitutional control body does not have binding legal force);

- decision-making supervision(the decision has a binding legal force).

4. Depending on mandatory:

- required(carried out due to the presence of mandatory requirements of the law on the need for it);

- optional(implemented subject to appropriate conditions and initiative).

5. Depending on forms:

- abstract(the analysis of the act is carried out without connection with a specific case);

- specific(checking the act in connection with a specific case).

6. Depending on volume:

- full control(covers all social relations that are regulated by the constitution);

- partial control(not all relations that are regulated by the constitution are subject to constitutional supervision).

7. Depending on content:

- formal(implemented from the position of compliance with the required form of the act, procedure and competence);

- material(implemented from the point of view of the content of the act).

8. Depending on points of view on making the act retroactive:

Control, retroactive;

Control, non-retroactive and acting for the future.

Bodies of constitutional control divided into two groups:

1) bodies exercising constitutional supervision along with other functions. As a rule, for them this activity is not the main one (head of state, parliament and its chambers, government, courts of general jurisdiction, administrative courts);

2) bodies that specialize in this type of control. For them it is the main activity (for example, specialized judicial and supervisory authorities).

8. Concept and objects of constitutional control. Types of constitutional control in foreign countries.

Constitutional control is a certain activity of special or authorized bodies of the state, the ultimate goal of which is to identify and suppress (up to the repeal of the action) laws and other normative legal acts that do not comply with the current constitution.

Constitutional supervision is the activity of state authorized bodies in order to identify unconstitutional acts; the result of such activity is notification of bodies that have adopted or are planning to adopt an act that is contrary to the constitution.

There are two types of constitutional control bodies:

1) political constitutional control as bodies that are not considered specialized;

2) judicial constitutional control, operating in:

a) the European system based on specialized bodies of constitutional control: judicial bodies (bodies of constitutional justice) and quasi-judicial bodies (Constitutional Council in France);

b) the American system, in which judges of general jurisdiction have the right to check the constitutionality of laws in the ordinary process of considering certain cases.

There are seven types of constitutional review.

1. Preliminary and subsequent control, in which authorized bodies give their conclusions on the conformity of specific acts with the constitution before they enter into force. If a dispute arises about the legality of an act, it can be considered after it enters into force. legal force. All legal acts recognized as illegal cease to be in effect or are prohibited from publication and do not enter into force. It is also possible that the laws remain in the statute books themselves, but cannot be enforced. The decision on the legality of a particular law by this body is final and cannot be appealed.

2. Concrete and abstract types of control, i.e. a decision is made on a specific case or an abstract case, in the general version.

3. Mandatory and optional types of control, i.e. some laws and regulations are subject to mandatory control, and some are subject to the initiative of the subject.

4. Decisive and advisory types of control.

5. There are decisions that have retroactive effect, and decisions that are valid only after its adoption, if we consider these decisions from the point of view of applying the decision of the body of constitutional control.

6. There is internal and external control, i.e. control is carried out either by the body that issued the law itself, or by another body.

7. Control is distinguished by content: formal, in which the constitutionality of the procedure for adopting an act is checked, and material - the constitutionality of the content is checked.

9. Basic models of judicial constitutional control in foreign countries.

There are two main models of organizing judicial constitutional control – American and European (Austrian).

Theoretical background American model received in the works of the American lawyer and scientist Alexander Hamilton at the end of the 18th century.

American model characterized by the fact that courts of general jurisdiction are vested with the corresponding powers. This model is otherwise called decentralized and “diffusion”. It is characterized by the interpretation of constitutional control as purely legal function. This model operates in Argentina, Brazil, Mexico, Japan and other countries.

At the same time, there are the following types of judicial bodies vested with the right to exercise constitutional control:

1. Constitutional control can be exercised by all courts of general jurisdiction, but the final decision is made by supreme court states.

2. Constitutional control is exercised only by the highest courts of the state.

3. Constitutional control is exercised by the highest courts of the constituent entities of the federation.

Under the American model, the positions of judges of the supreme courts are filled, as a rule, by decision of the head of state, sanctioned by parliament.

The advantages of this system include: the ability to go to court on the issue of the constitutionality of a legal act by any party to the legal process; the ability to consider a case of unconstitutionality of a legal act in any court; ensuring the principle of competition in the process. The disadvantages of the system include the following: with such a system, only subsequent constitutional control is possible, when a law that has entered into force can have various consequences, and recognizing it as unconstitutional can lead to instability and confusion of legal relations; the question of the constitutionality of a legal act is decided by a judge who, as a rule, is not a professional in constitutional law; Bringing the case to the court of last instance, which makes the final decision, can take a very long time.

In some countries (Colombia, Peru) a Chamber of Constitutional Guarantees is created, which operates separately or as part of the Supreme Court.

The European model received theoretical justification in the works of the Austrian lawyer and philosopher Hans Kelsen and was first implemented in Austria in the 30s. XX century.

European (Austrian) model characterized by the presence in the state of a specialized judicial body, separated from the courts of general jurisdiction. Its main function is to assess the constitutionality of legislative acts, although it may be vested with other powers. Bodies of constitutional justice are usually called constitutional courts, but other names are also found.

Under the European model, the procedure for forming bodies of constitutional control has its own characteristics in almost every country. There are also differences in the principles of their organization. However, as a general rule, with this model, bodies representing various branches of government participate in the formation of constitutional control bodies.

For example, in Austria, the constitutional court consists of a chairman, his deputy and 12 judges, as well as 6 reserve judges. The chairman, deputy, six active judges and three reserve judges are appointed by the president at the proposal of the government. The rest are appointed by the president from among the candidates proposed by the chambers of the federal parliament. Judges retire at age 70.

The undoubted advantage of this model is that anyone can appeal to the constitutional court. Another advantage of the constitutional court is that it is composed of specialists in constitutional law. The disadvantage of the European model, like the American one, is that exercising control over acts that have entered into legal force and have had cases of application can lead to instability and confusion of legal relations, since they will be regulated in various ways before and after the act is declared unconstitutional.

First idea protection of the constitution with the help of specialized state (extrajudicial) bodies were put forward by the French lawyer and politician Emmanuel Joseph Sieyès in 1795; however, it was implemented only after the adoption of the French Constitution of 1958 through the creation of the Constitutional Council.

The French Constitutional Council is a special body that monitors compliance with the Constitution. It consists of 9 people appointed for 9 years. Three members of the Council are appointed by the President, three by the President of the Senate and three by the President of the National Assembly. All laws before their promulgation by the President and regulations of the chambers before their adoption must be submitted to the Constitutional Council, which gives an opinion on whether they comply with the Constitution. If the Constitutional Council decides that a particular act is contrary to the Constitution, it has the right to repeal it. In addition to the function of constitutional supervision, the powers of the Constitutional Council include monitoring the course of presidential elections, holding national referendums and considering disputes about the correct election of parliament members. The decisions of the Constitutional Council are final and not subject to appeal. They are mandatory for all government bodies.

A similar form of control was adopted in a number of former French colonial possessions, as well as in Kazakhstan and some other countries.

The Constitutional Council, as a rule, is formed by various branches of government, independently of each other. It may also include persons in accordance with their social position (for example, former presidents of the republic). Thus, not only lawyers, but also politicians can be members of the constitutional council, which makes it possible to have a comprehensive assessment of the legal acts under consideration. The advantage is that with this form of control, the law is checked for constitutionality before it is signed and promulgated by the president, and this excludes the effect of laws that do not comply with the constitution. At the same time, subsequent constitutional control is also possible when considering issues of violation of the constitutional rights of citizens by one or another legal acts. The disadvantages of this model include the absence of an adversarial process, but this also has its positive side, since it ensures the speed of making the necessary decision.

In Muslim countries they can create constitutional-religious councils, consisting of theologians and lawyers . For example, in Iran there is a supervisory board consisting of 12 people: 6 theologians appointed by the highest clergy and 6 lawyers nominated by parliament.

There are the following forms of constitutional control:

- by implementation time : preliminary– carried out at the stage of consideration of bills, before they are signed by the head of state (Romania, France, Poland); subsequent (future)) – applies to regulations that have entered into force (Germany, India, USA, Philippines).

- according to form: specific – solution issued in connection with a specific case; abstract– the decision is not related to a specific case.

- according to mandatory : required- carried out on the basis of the requirements of the constitution and legislation, regardless of the will of any body or official; optional- carried out only on the initiative of those who are endowed with the appropriate right.

There are two procedures of constitutional control –by action And by prohibiting .

In the first case, the initiation of the question of the constitutionality of a normative legal act can be carried out immediately after it comes into force, regardless of the fact of application.

In the second case, consideration of the issue directly depends on the specific application of the normative legal act.

The decision of the constitutional control bodies has a different nature and legal consequences. Most often, after a decision is made on the unconstitutionality of a normative legal act, its effect is terminated, and the decisions of constitutional control bodies are binding and are not subject to appeal to any body.

The main authority of constitutional control bodies is to assess the constitutionality of legislative acts. In addition, the powers of these bodies include resolving other issues. In countries where constitutional control is exercised by courts of general jurisdiction, the latter have the right to assess the constitutionality of court decisions and regulatory legal acts of executive authorities, including acts of the head of state. In addition, here the courts exercise control over the activities of executive authorities.

10. Bodies of judicial (quasi-judicial) constitutional control in foreign countries: the order of formation and their internal organization.

The European system involves the establishment of special quasi-judicial bodies of constitutional control. For these bodies, supervisory activity is the only or main function. They have special constitutional jurisdiction, exercised through independent proceedings - constitutional proceedings. Such bodies include, for example, the Constitutional Council and partly the State Council in France and a number of other countries that have adopted the French constitutional model.

The main difference between constitutional councils and constitutional courts (tribunals) is that councils usually do not use a public procedure, but a closed one, based on written proceedings. Accordingly, they do not consider individual constitutional complaints.

Constitutional control in France is very unique and goes somewhat beyond the above two models of constitutional control. The constitutionality of acts emanating from state bodies is considered by various bodies: from parliament - by the Constitutional Council, from executive authorities - by the State Council, which heads the administrative justice system.

The main function of the Constitutional Council is to consider the compliance of a number of acts with the basic law of the country. First of all, in mandatory Organic laws are subject to control prior to their promulgation or amendment to existing organic laws. The second mandatory category of acts is the regulations of the chambers of parliament. The Constitutional Council must check the compliance of organic laws and regulations of the chambers of Parliament with the Constitution before they enter into force.

To implement the responsibility of senior state officials in France, the High Court of Justice and the Court of Justice of the Republic are created.

All bills French Government submitted for consideration by Parliament are necessarily first considered by the State Council - the highest body administrative justice, simultaneously performing the functions of legal adviser to the Government. “Bills are discussed in the Council of Ministers upon receipt of an opinion State Council and are submitted to the bureau of one of the chambers,” reads the first sentence of part two of Art. 39 of the Constitution.

A unique body of constitutional control was established by the Constitution of Iran . Such a body is the Guardian or Trustee Council, formed from ordinary and Muslim lawyers. According to Art. 94 of the Constitution, all legislation adopted by the Islamic Consultative Assembly (Parliament) must be sent to this council, which is obliged to check its compatibility with the criteria of Islam and the Constitution within 10 days. The Council is also entrusted with the interpretation of the Constitution (Article 98) and supervision of the elections of the Assembly of Knowledgeable Persons of the Leadership, the President of the Republic, the Islamic Consultative Assembly, as well as direct appeal to the opinion of the people and the referendum (Article 99).

The Constitution of Pakistan is not so categorical. Pakistan has established the Council of Islamic Ideology, or Islamic Council, consisting of no less than 8 and no more than 15 members appointed by the President of the country. The Council's duties include making recommendations to Parliament and provincial assemblies on their activities, which should be in accordance with the "principles and concepts of Islam as formulated in the Qur'an and the Sunnah." The latter is considered to be a supplement to the Koran. The Council also gives advice to Parliament, provincial assemblies, the President of the Republic and the Governors on any matter referred to the Council, and also makes recommendations regarding existing laws regarding their conformity with Islam (Article 230).

Types of constitutional control in foreign countries can be classified on various grounds.

According to the time of implementation, constitutional control can be preliminary or subsequent. During preliminary control, an act is checked before it comes into force (a law - before authorization and promulgation, but after adoption by parliament). Subsequent control extends in principle to acts in force, at least officially published.

Depending on the place of exercise, constitutional control may be internal And external Internal control is carried out by the body itself that issues the act, external control is carried out by another body, for example, the head of state, to whom the law adopted by parliament was received for signature or promulgation. Internal control, as a rule, is preliminary, although there are examples of subsequent internal control(below in paragraph 4 of this paragraph we will show this using the example of Cuba). Often such control is advisory in nature and does not exclude external control. External control in most cases is subsequent, but it can also be preliminary. For example, all bills of the French Government submitted to Parliament are necessarily first considered in the Council of State - highest body Administrative Justice, simultaneously performing the functions of a legal adviser to the Government. “Bills are discussed in the Council of Ministers upon receipt of the conclusion of the State Council and are submitted to the bureau of one of the chambers,” reads the first sentence of part two of Art. 39 of the Constitution.

From the point of view of legal consequences, constitutional control can be advisory or resolving. The decision in the form of advisory control has moral, not legal force - it does not legally oblige or bind anyone. On the contrary, a decision taken by way of decrees is obligatory, even generally binding: if it declares an act to be in conformity with the constitution, no further claims against it in this regard are accepted; if the act is declared unconstitutional, then it loses legal force or, less commonly, it is returned for review by the issuing authority. Most often, constitutional control is understood as decision-making control.

According to the mandatory nature of constitutional review, it can be compulsory or optional. In the first case, the act is necessarily subject to constitutional control, usually preliminary. Thus, in France, the Constitutional Council must check the compliance of organic laws and regulations of the chambers of Parliament with the Constitution before they enter into force. Optional control is carried out only in the event of a declared initiative of the authorized subject. Most often, constitutional control is optional: it is carried out at the request of an authorized body or official, or an individual who has doubts about the constitutionality of an act.

The form of constitutional control can be abstract or specific. Abstract control means checking the constitutionality of an act or rule without connection with any case. Preliminary control can only be abstract (but not vice versa). Specific control is carried out only in connection with some, most often judicial, case, in the resolution of which they are subject to application certain norms or an act challenged from the point of view of constitutionality. He, therefore, is always subsequent. Abstract control, in our opinion, has certain advantages over concrete control: it allows a broader look at the problem of the relationship of the contested act with the constitution, ensures unity and consistency of control, and ultimately better corresponds to the idea of ​​separation of powers. True, specific control creates better opportunities for more or less operational protection human rights.

In terms of its scope, constitutional control can be complete or partial. Full control covers the entire system public relations regulated by the constitution. Partial control extends only to certain areas, for example, human and civil rights, federal relations etc.

In terms of content, constitutional control can be formal or material. During formal control, compliance with the constitutional conditions and requirements relating to the issuance of an act is checked, that is, whether the issuance of the act was within the competence of the issuing body, whether the procedural requirements were met, and whether the act was issued in the proper form. Material control deals with the content of the act and means checking the compliance of this content with the provisions of the constitution.

From the point of view of action in time, or more precisely, retroactive effect, two forms of constitutional control are also observed. First form - ex tunc - means that the decision to declare unconstitutionality has retroactive effect and a norm or act declared unconstitutional is considered invalid from the very beginning: from the moment of its publication or from the moment it enters into force constitutional norm, which they began to contradict. It follows that the relations that existed before this moment must be restored, the damage caused by their publication must be compensated, etc. This gives rise to great difficulties, and sometimes it is simply impossible, especially when an unconstitutional norm or act was in effect long time. Therefore, the second form is more often used - ex nunc, - meaning that the decision on unconstitutionality is valid only for the future, and all previous consequences of the unconstitutional norm or unconstitutional act remain in force. Constitution of Romania in Part 2 of Art. 145 directly states: “Decisions Constitutional Court are binding and have effect only for the future” (sentence one).

Organization of constitutional control in foreign countries.

Constitutionalism, as one of the most important principles of democracy, is based on the assumption that the norms of a written constitution have supreme legal force in relation to all other sources of law. From this premise, the concept of constitutional legality develops, by virtue of which any rule-setting activity in the country must be carried out in accordance with the constitution. A legal norm issued by any government body acquires legal force only if the rules of conduct contained in it do not contradict the requirements of the constitution. Otherwise this legal norm may be recognized in in due course insignificant. This task is assigned to the institution of constitutional control, which in the prescribed form carries out verification of ordinary laws and other normative acts from the point of view of their compliance with the constitution. Thus, the function of constitutional control is to maintain and ensure constitutional legality. The doctrine of constitutional review was first formulated and applied by the U.S. Supreme Court under John Marshall in 1803 in Marbury v. Madison. Although the US Federal Constitution did not give the Supreme Court the right to determine the conformity of congressional laws with the Constitution, it applied and institutionalized this right. In the named court decision The Supreme Court declared Section 13 of the Judiciary Act 1789 to be contrary to Chapter III of the Constitution and thereby void and not enforceable through the courts. Thus. Supreme Court The United States itself arrogated to itself the powers of constitutional review, which were never subsequently challenged. In 1848, constitutional control was introduced in Switzerland, in 1853 - in Argentina. It is now used in various forms almost everywhere. The exception is those countries that do not have written constitutions.

Constitutional control represents a certain activity of special or authorized bodies of the state, the ultimate goal of which is to identify and suppress (up to the cancellation of the action) laws and other normative legal acts that do not comply with the current constitution.

Constitutional oversight is the activity of state authorized bodies with the aim of identifying unconstitutional acts, the result of such activity is notification of bodies that have adopted or are planning to adopt an act that is contrary to the constitution.

There are two types of constitutional control bodies:

1) political constitutional control as bodies that are not considered specialized;

2) judicial constitutional control, operating in:

A) European system, based on specialized bodies of constitutional control: judicial bodies (bodies of constitutional justice) and quasi-judicial bodies (Constitutional Council in France);

b) American system, in which judges of general jurisdiction have the right to check the constitutionality of laws in the ordinary process of considering certain cases.

There are seven types of constitutional review.

1. Preliminary and subsequent control, in which authorized bodies give their conclusions on the conformity of specific acts with the constitution before they enter into force. If a dispute arises about the legality of an act, it can be considered after it enters into legal force. All legal acts recognized as illegal cease to be in effect or are prohibited from publication and do not enter into force. It is also possible that the laws remain in the statute books themselves, but cannot be enforced. The decision on the legality of a particular law by this body is final and cannot be appealed.

2. Concrete and abstract types of control, i.e. a decision is made on specific case or an abstract matter, in the general version.

3. Mandatory and optional types of control, i.e. some laws and regulations are subject to mandatory control, and some are subject to the initiative of the subject.

4. Decisive and advisory types of control.

5. There are decisions that have retroactive effect, and decisions that are valid only after its adoption, if we consider these decisions from the point of view of applying the decision of the body of constitutional control.

6. There is internal and external control, i.e. control is carried out either by the body that issued the law itself, or by another body.

7. Control is distinguished by content: formal, in which the constitutionality of the procedure for adopting an act is checked, and material - the constitutionality of the content is checked.