Direct application of the Constitution of the Russian Federation. Legal properties of the Constitution of the Russian Federation

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1.Constitutional principles of Russian legal proceedings

According to the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”, the principles of legal proceedings include:

Independence of judges

Collegiality

Publicity of proceedings

Orality of the proceedings

Competitiveness and equality of the parties

The language of legal proceedings is Russian.

2. Direct Application Constitution of the Russian Federation.

The Constitution of the Russian Federation and federal laws have supremacy throughout the entire territory of the Russian Federation. The Constitution of the Russian Federation has supreme legal force, direct effect and is applied throughout the entire territory of the Russian Federation. Laws and other legal acts adopted in the Russian Federation must not contradict the Constitution of the Russian Federation.

Organs state power, organs local government, officials, citizens and their associations are obliged to comply with the Constitution of the Russian Federation and laws.

In the event of a conflict between the norms of any sectoral law of the Constitution, the latter shall apply. The possibility of direct application of the norms of the Constitution in regulating criminal procedural relations cannot be ruled out in advance. It is difficult to calculate how it will “behave” industry norm in contact with actual social relations (extremely diverse) that may arise in relations between the court, prosecutors, investigators, interrogators, and most importantly - in their relations with citizens involved in the sphere of criminal proceedings. Therefore, turning to the norms of the Constitution may become inevitable and will help in the current situation to find the optimal legal solution.

The court, when resolving a case, applies directly the Constitution, in particular:

A) when the provisions enshrined in the norm of the Constitution, based on its meaning, do not require additional regulation and do not contain an indication of the possibility of its application, subject to the adoption of a federal law regulating the rights, freedoms, duties of man and citizen and other provisions;

B) when the court comes to the conclusion that the federal law, which was in force on the territory of the Russian Federation before the entry into force of the Constitution of the Russian Federation, contradicts it;

C) when the court becomes convinced that a federal law adopted after the entry into force of the Constitution of the Russian Federation is in conflict with the relevant provisions of the Constitution;

D) when a law or other regulatory legal act adopted by the subject of the Russian Federation in subjects joint management of the Russian Federation and the constituent entities of the Russian Federation, contradicts the Constitution of the Russian Federation, and there is no federal law that should regulate the legal relations considered by the court.

3. The right of citizens to judicial protection: issues of theory and practice.

According to Art. 2 of the Constitution of the Russian Federation:

“Man, his rights and freedoms are the highest value. Recognition, observance and protection of human and civil rights and freedoms is the duty of the state.”

According to Art. 6 of the Rome Convention for the PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS:

1. In the event of a dispute concerning his civil rights and obligations or any criminal charge brought against him, everyone has the right to a fair and public hearing in reasonable time an independent and impartial court established by law. The judgment is announced publicly, but the press and public may not be allowed to attend. court hearings during the whole process or part thereof for reasons of morality, public order or national security in a democratic society and when the interests of minors so require or for the protection privacy parties, or - to the extent strictly necessary in the opinion of the court - when special circumstances when publicity would violate the interests of justice.

2. Everyone accused of committing a criminal offense is considered innocent until his guilt is established by law.

3. Every person accused of a criminal offense has at least the following rights:

A) be informed promptly and in detail, in a language he understands, of the nature and basis of the charge brought against him;

B) have sufficient time and opportunities to prepare his defense;

C) defend himself personally or through a defense attorney of his own choosing, or, if he does not have enough funds to pay for the services of a defense attorney, use the services of a defense attorney assigned to him free of charge when the interests of justice so require;

C) to examine witnesses against him or to have those witnesses examined, and to have the right to summon and examine witnesses in his favor under the same conditions as for witnesses against him;

D) use free help an interpreter if he does not understand or speak the language used in court.

According to the Constitution of the Russian Federation, State protection human and civil rights and freedoms are guaranteed in the Russian Federation.

Everyone has the right to protect their rights and freedoms by all means not prohibited by law. Everyone is guaranteed judicial protection of their rights and freedoms.

Protection of violated or challenged civil rights is carried out in accordance with the jurisdiction of cases established procedural legislation, court, or arbitration court(hereinafter referred to as the court).

Protection of civil rights in administrative procedure carried out only in cases provided by law. A decision made administratively may be challenged in court.

With the advent of constitutional (statutory) courts subjects of the Russian Federation citizens and legal entities received an additional guarantee in the protection of their rights and freedoms. Since, as a result of decisions of the constitutional (statutory) court, not only the person or persons who filed a complaint, but also other citizens receive judicial, and, moreover, very prompt, protection of their constitutional rights, whose rights were violated or could be violated by a normative legal act considered by the court, it is the constitutional (statutory) courts that are the most effective means of protecting human and civil rights.

Besides, legal positions constitutional (statutory) courts contain guidelines for legislative and other lawmaking activities legislative, executive bodies subjects of the Russian Federation, as well as local governments.

this direction of his activities.Luchin V.O.. 2005 .

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Before proceeding to the analysis of the legal properties of the Constitution of the Russian Federation, it is necessary, based on the theoretical provisions discussed above, characterizing the constitution various states in general, formulate the concept of the Constitution of the Russian Federation. The Constitution of the Russian Federation is a normative legal act that has the highest legal force, establishing the foundations of the constitutional system; fundamentals of the legal status of a person and citizen; federal structure; system of government bodies; principles of local government organization. The legal properties of the Constitution are signs that make it possible to distinguish it from acts of current legislation. The legal properties of the Constitution include: constituent character, legitimacy, supremacy, stability, direct action, the basis of current legislation, reality, programmaticity.

1. The constituent nature of the Constitution is manifested in the fact that its norms consolidate the foundations of the state and social structure, establish the most important state institutions, through which state power is exercised, the principles of their creation and activity. In addition, constitutional norms establish the procedure for creating all legal norms in force in the state and their hierarchy in the legal system.
2. The legitimacy of the Constitution lies in the fact that it is adopted by the people (by referendum) or on behalf of the people (by a representative body of the state - the parliament or by a body specially created for the adoption of the constitution - the constituent assembly), which possesses all the fullness of state power. The Constitution of the Russian Federation, adopted by popular vote on December 12, 1993, can be called legitimate “with a certain degree of conditionality.” It was approved by 58.4% of voters who took part in the voting, which is 31% of all registered voters.
3. The supremacy of the Constitution of the Russian Federation means its priority position in the system of regulatory legal acts operating on the territory of Russia. “Laws and other legal acts adopted in the Russian Federation must not contradict the Constitution of the Russian Federation,” establishes Part 1 of Art. 15 of the Constitution of the Russian Federation. The supremacy of the Constitution of the Russian Federation is manifested not only in relation to legislation that will be adopted in the future, but also to legislation adopted before the Constitution of the Russian Federation came into force. Thus, paragraph 2 of Section II of the Constitution of the Russian Federation states that “laws and other legal acts in force on the territory of the Russian Federation before the entry into force this Constitution, are applied in part, not contrary to the Constitution Russian Federation". The supremacy of the Constitution of the Russian Federation acquires additional significance in the context of a federal government system Russia, when the subjects of the Federation have their own constitution and their own legislation. Republican constitutions and other legal acts adopted by the constituent entities must not contradict the federal Constitution (Part 1 of Article 15 of the Constitution of the Russian Federation). The supremacy of the Constitution of the Russian Federation is ensured in a special way its adoption and changes; giving constitutional norms the highest legal force; increased legal protection constitutional requirements.
4. Stability of the Constitution - the most important condition regime of legality, stability of the entire legal system and organization of state power, certainty of relations between the individual and the state. The stability of the Constitution depends on many factors (for example, on the alignment of socio-political forces operating in the political arena of the country, on the level of political and legal culture citizens, from the perfection of the provisions of the Constitution itself, etc.). The stability of the Constitution of the Russian Federation is guaranteed by the strict procedure for its revision and constitutional amendments.
5. The Constitution of the Russian Federation has direct effect (Part 2 of Article 15 of the Constitution of the Russian Federation). This means that the norms of the Constitution of the Russian Federation are directly applicable, that is, their implementation does not require the adoption of additional, specific sectoral legal norms as a prerequisite. At the same time, many norms of the Constitution of the Russian Federation, by virtue high level generality legal regulation, require additional regulation through the adoption of acts of current legislation. The problem of ensuring the direct effect of the Constitution of the Russian Federation in the administration of justice was resolved in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 31, 1995 “On some issues of the application by courts of the Constitution of the Russian Federation in the administration of justice,” which states that the court, when resolving a case, applies directly the Constitution of the Russian Federation, in particular:
- a) when the provisions enshrined in the norm of the Constitution of the Russian Federation, based on its meaning, do not require additional regulation and do not contain an indication of the possibility of its application, subject to the adoption of a federal law regulating the rights, freedoms, duties of man and citizen and other provisions;
- b) when the court comes to the conclusion that the federal law in force on the territory of the Russian Federation before the entry into force of the Constitution of the Russian Federation contradicts it;
- c) when the court comes to the conclusion that a federal law adopted after the entry into force of the Constitution of the Russian Federation is in conflict with the relevant provisions of the Constitution of the Russian Federation;
- d) when a law or other regulatory legal act adopted by a constituent entity of the Russian Federation on subjects of joint jurisdiction of the Russian Federation and constituent entities of the Russian Federation contradicts the Constitution of the Russian Federation, and there is no federal law that should regulate the legal relations considered by the court.
6. The reality of the Constitution means the correspondence of constitutional prescriptions (legal constitution) to the social relations that are developing in reality (actual constitution). In other words, the constitution must reflect the achieved stage of development of social relations in the political, economic, social spheres, in otherwise it will be fictitious. The reality of the constitution is evidenced by the enforceability and guarantee of its provisions. For example, the ability of citizens, guided by the Constitution and referring to it, to apply for judicial protection their rights and freedoms is an indicator of the reality of constitutional norms dedicated to legal status personality.
7. The Constitution is legal basis current legislation. This property of the Constitution is manifested in the fact that constitutional norms serve Starting point for all branches of Russian law. Yes, at the base constitutional provisions, securing freedom economic activity, equality of all forms of property is developing in Russian civil law.
8. The programmatic nature of the Constitution is manifested in the fact that the norms-principles and norms-goals formulated in it determine the main directions, goals and objectives further development society and state. Yes, characteristic Russian state as legal, contained in Part 1 of Art. 1 of the Constitution of the Russian Federation cannot serve as a basis for recognizing it as such, but this is an ideal to which the Russian Federation should strive.

Constitution of modern democratic state must have one important property: it must be an act of direct action. The practical significance of the direct effect of the constitution is that a citizen has rights directly on the basis of constitutional norms, for the protection of which he has the right to go to court, referring exclusively to the article of the constitution, and the court does not have the right to refuse to consider the case, citing the fact that there is no laws or regulations specifying this norm. Thus, the direct effect of the constitution means that state bodies are obliged to consider the norms of the constitution as a direct normative basis for law enforcement and use them to resolve specific cases.

The Constitution of the Russian Federation, adopted by referendum in December 1993, is also a normative act of direct action. Part 1 of Art. 15 it states: “The Constitution of the Russian Federation has supreme legal force, direct effect and is applied throughout the entire territory of the Russian Federation.” There was no such entry in previous Russian constitutions. It means that the new Constitution of the Russian Federation is not a solemn declaration, but a fully operational normative legal act, the norms of which can be used to resolve specific disputes, consider complaints and applications of citizens, that is, to resolve cases on the merits. The direct effect of the Constitution is a great achievement of democratic Russia, no less important than, for example, private property or freedom mass media. At the same time, of course, you need to understand that the direct effect of the Constitution is not just a change in the principle of operation of the Basic Law by the stroke of the legislator’s pen, but a consequence of deep socio-economic transformations and the formation of civil society. In Art. 18 of the Constitution says: “The rights and freedoms of man and citizen are directly applicable. They determine the meaning, content and application of laws, the activities of legislative and executive power, local self-government and are ensured by justice." At the same time, the direct effect of the Constitution, obliging state bodies to use its norms as a direct normative basis for law enforcement, relates not only to the rights of citizens, but also means that the state gets the opportunity directly on the basis of the norms of the Constitution to within the framework of the application of the right to take power-coercive actions in order to restore constitutional order, preserve its integrity, eliminate illegal armed groups, etc. The indication in the Constitution that it is an act of direct action gives grounds to draw the following conclusions:

1. All norms of the Constitution must be considered as norms of direct action: the indirect effect of a particular constitutional norm must be considered as an exception and be specifically stipulated in the Constitution itself. How this was done, for example, in Part 2 of Art. 47: “An accused of committing a crime has the right to have his case examined by a court with the participation of a jury in cases provided for by federal law.”
2. The direct effect of the Constitution does not mean that norms specifying it and procedural acts necessary for the effective implementation of its norms should not be adopted. On the contrary, all this is presupposed by the very nature of the Basic Law. Another thing is that the absence of such acts should not be declared a reason for the non-application of constitutional norms.

Ensuring the direct effect of the Constitution is one of the main tasks of the judiciary. The direct application of constitutional norms in the field of rights and freedoms of citizens began to be ensured by the Constitutional Court of the Russian Federation. The Plenum of the Supreme Court in a number of decisions provided clarifications based on the priority of constitutional norms and directed the courts to apply the Constitution of the Russian Federation as an act of direct action when considering civil and criminal cases. Thus, on October 31, 1995, the Plenum of the Supreme Court adopted the Resolution “On some issues of the application by courts of the Constitution of the Russian Federation in the administration of justice,” in which it emphasized that when considering cases, courts should evaluate the content of the law or other normative legal act regulating the legal relations considered by the court, and in all necessary cases, apply the Constitution of the Russian Federation as an act of direct action.

constitution democratic state

Is a normative legal act direct action(Part 1, Article 15). There was no such entry in previous constitutions.

Direct effect of the Constitution

Effect of the Constitution means maintaining the legal force of its provisions until they are amended and repealed. The Constitution operates directly, constantly, just as the proclaimed constitutional goals and objectives operate directly and constantly, established forms government and forms of government, fundamental rights and freedoms of man and citizen and other constitutional values.

However, the direct effect of the Constitution of the Russian Federation does not mean that all its provisions are automatically embodied in reality. This requires a variety of active legal activities. competent authorities and officials for their implementation. Implementation of constitutional provisions is required condition activities of competent authorities and officials in the legislative, judicial, law enforcement, supervisory and control spheres.

In the literature, it is proposed to distinguish the effect of the Constitution of the Russian Federation as its diverse impact on social and state legal reality from the implementation of constitutional provisions in various forms(use, execution, compliance, application), in active actions subjects constitutional law addressed to constitutional requirements. “Implementation,” as V. O. Luchin correctly notes, “always presupposes socially and legally significant behavior of subjects, their positive activities to achieve certain social results; implementation represents the satisfaction of constitutional interests and needs in the legitimate activities of subjects of law.”

Usually, the implementation of the constitution is considered mainly and predominantly in terms of the implementation of constitutional norms, acting as rules of conduct, within the framework of constitutional legal relations. This approach is clearly insufficient, because constitutional provisions are not limited to constitutional norms.

Constitutional provisions are varied in content and purpose. They can be classified into general regulatory and specific regulatory. General regulatory establishments cover the goals and objectives enshrined in the constitution, legal definitions, principles, status of subjects constitutional relations, A specific regulatory include constitutional norms: rights and obligations, presumptions, fictions, symbols regulating social relations. The variety of forms of implementation depends on the specific content of the types of constitutional provisions.

Implementation of the Constitution

The implementation of constitutions (statutes of constituent entities of the Russian Federation) in Russia is carried out through use, compliance, execution, application. The Constitution (fundamental law) is used, in particular, by individuals and legal entities to exercise their rights. Its observance means that the behavior of participants in constitutional and legal relations must comply with the norms of the fundamental law and not go beyond these limits. The implementation of the constitution is carried out by fulfilling its instructions (for example, the parliament of the Russian Federation issues federal constitutional laws on issues specified in the Constitution of the Russian Federation, in accordance with the Charter Nizhny Novgorod region its governor appoints members of the regional government, etc.). The application of the constitution is achieved primarily as a result of the activities of the bodies public authority(the exercise of their powers, the creation of structures, provided for by the constitution, application of the constitution by the courts, establishment of state pensions, etc.).

The implementation of the constitution (fundamental law) may have indirect nature(through the issuance of other acts in accordance with its norms), but it may also have direct action(Part 1 of Article 15 of the Constitution of the Russian Federation). The latter means that the norms of the constitution should be applied, in particular, by state bodies without issuing any additional legal acts, if within the meaning of such norms this is not necessary. The conditions for the direct application of the Constitution of the Russian Federation by the courts in the administration of justice (these conditions, with appropriate amendments, apply to the basic laws of the constituent entities of the Russian Federation) are determined in the resolution of the Plenum of the Supreme Court of the Russian Federation of October 31, 1995. The Constitution is applied directly by the courts: if the provisions of the Constitution of the Russian Federation do not require additional regulation; if the court comes to the conclusion that a law adopted before the entry into force of the Constitution of the Russian Federation contradicts it; if the court is convinced that a federal law adopted after the entry into force of the Constitution of the Russian Federation contradicts it; if an act adopted by a subject of the Russian Federation on subjects of joint jurisdiction contradicts the Constitution of the Russian Federation, and the federal law on this issue absent.

The Constitutional Court of the Russian Federation, however, believes that if in a court, including the Supreme Court, the question of constitutionality arises legal norm, the courts must necessarily appeal to the Constitutional Court of the Russian Federation, because elimination is not constitutional law(norms) from the legal system cannot be achieved through clarification (including by the Plenum of the Supreme Court of the Russian Federation).

Direct application of constitutions (statutes of constituent entities of the Russian Federation) by state bodies and officials, however, is not always possible. In some cases, the provisions of the basic law require additional regulation. This applies, for example, to provisions on general, direct, equal elections, on the formation of the Federation Council, on land, on pensions, on the obligation to pay taxes, on military service, etc. Without the publication of relevant laws and other legal acts, such constitutional norms difficult to put into practice directly. An example of this is the long-term disputes of some courts with the bodies of the Ministry of Defense of the Russian Federation on the application of Part 3 of Art. 59 of the Constitution of the Russian Federation on alternative civil service, replacing military duty, before the adoption of the relevant law in 2002.

Provision and social mechanism of action and implementation of the constitution

IN rule of law not only is the supremacy proclaimed, the highest legal force and the direct effect of the constitution, but also its operation and implementation are actually ensured and guaranteed. In order to consistent implementation The Constitution of the Russian Federation should be efficient system its provision (guarantee).

The system of ensuring (guaranteeing) the Constitution of the Russian Federation in the activities of public authorities and officials consists of two blocks, including measures aimed at preventing constitutional violations and to strengthen constitutionality. This division is due to the dual nature of the conditions and factors of the social environment influencing the functioning of officials, which can be both positive (guarantees) and negative.

Prevention of constitutional violations means identifying and eliminating the causes and conditions for violation of the Constitution of the Russian Federation, counteracting negative factors that lead to violations of the Constitution of the Russian Federation. These types of factors include economic and political instability, government corruption, legal nihilism, low legal culture and deformation professional legal consciousness officials, their focus on the priority of expediency over legality, lack of professionalism, etc.

Strengthening constitutionality involves the formation, improvement and development of guarantees for the operation and implementation of the Constitution of the Russian Federation, i.e. conditions, factors and means that have a positive impact on the implementation of constitutional provisions. It is necessary to distinguish between general and special guarantees actions and implementation of the Constitution of the Russian Federation.

General guarantees of the validity and implementation of the Constitution according to the spheres of social relations, they are divided into economic, political, social and spiritual-cultural guarantees; first of all, they ensure the implementation of constitutional provisions.

General guarantees operate in inextricable unity and intertwining not only with each other, but also with legal guarantees.

Legal guarantees for the operation and implementation of the constitution include:

firstly, legislatively established measures to prevent constitutional violations, including measures to increase legal awareness and legal culture of society, officials, supervision and control measures to identify offenses and suppress them;
secondly, the established legal mechanism for the action and implementation of constitutional provisions (the rights and obligations of subjects of constitutional legal relations, legal facts, procedures for implementing constitutional provisions, incentives and incentives, etc.);
thirdly, established measures of protection and measures of responsibility for committed constitutional violations.

Of course, even if there are common and legal guarantees There will be practically no implementation of constitutional provisions if it is not supported by specific organizational and managerial activities of the competent bodies and persons. Organizational and managerial activity is a condition, a universal prerequisite for the effectiveness of the entire system of guarantees for the implementation of the constitution. Here we mean, first of all, the multifaceted activities of the state, its bodies, officials, local governments, and other subjects of the implementation of constitutional provisions in all spheres of public and state life.

Organization of ensuring the operation and implementation of the constitution

From a managerial perspective, organizing the action and implementation of constitutional provisions means, firstly, determining the state of compliance with constitutional requirements in one or another level of public authority; secondly, the development of measures aimed at preventing constitutional violations and other measures to ensure the implementation of constitutional provisions; thirdly, the creation of a mechanism for the protection and defense of constitutional provisions. It's about about planning, coordination, implementation decisions taken and monitoring their implementation.

Great theoretical and practical significance has the development of uniform criteria for assessing the state of action and implementation of constitutional provisions, as well as a system of indicators for its determination in relation to the activities of public authorities, individual units, divisions and services. It is necessary to use various sources of information about violations of the constitution in the activities of public authorities, and identify them if they have not been officially taken into account, for example, in statistical reporting. To analyze the dynamics of the structure of violations of the constitution in the activities of state bodies and local governments, it is important to develop a methodology for detecting, identifying such violations by department heads during inspections, supervisory and other checks.

The organization of a system for ensuring the operation and implementation of the constitution in the activities of public authorities also includes: analysis of committed violations of the constitution, the reasons and conditions for their commission, development of measures to prevent such violations; improving measures to protect the operation and implementation of the constitution in the activities of public authorities, developing measures to strengthen the regime of compliance with the constitution; improvement of management activities; inclusion in plans comprehensive measures to ensure the constitutionality of legislative and executive activities; formation of practical skills and abilities to ensure the operation and implementation of the constitution in the process of both training and performance of official duties of officials.

Correctly organizing a system for ensuring the operation and implementation of constitutional provisions is possible only with mandatory consideration of the levels, hierarchy of a particular system of public authorities, and its internal and external relations.

Any branch system control, as is known, works to strengthen itself, homeostasis. Therefore, if we are to be realistic, we must admit that the management system as a whole, like its constituent units and units, is not always interested in revealing an objective picture of the state of constitutionality, much less in identifying its violations, i.e. in self-incrimination. Therefore very important in protecting and strengthening constitutionality have, for example, prosecutor supervision and judicial control.

Social mechanism of action and implementation of the constitution

In civil society, the legal mechanism of action and implementation of the constitution acts simultaneously as a social mechanism based on direct and feedback connections in the “constitution - social relations” system.

The social mechanism of action and implementation of constitutional provisions can be represented as a closed system of interrelations of conditions public life, constitutional provisions and social results of their action and implementation, i.e. as a complex dynamic system.

The starting point in this system will be the provisions of the constitution. Legal mechanism implementation of constitutional provisions also has social aspects, namely the motives and decisions of the subjects of implementation of constitutional provisions, their actual behavior and, finally, social results such behavior. This stage of implementation of the constitution is based on direct communications in the system “constitution - public relations” (“constitutional law and social practice”).

In the system “constitution - social relations” there are feedbacks, which make it possible to take into account the results of the implementation of constitutional provisions, especially in judicial and other law enforcement practice of subjects of constitutional legal relations.

Independent stage feedback in the “constitution - public relations” system is the perception of information accumulated as a result of the implementation of the provisions of the constitution by interested subjects (legislative, executive, judicial and other bodies). The transmission and assessment of information is carried out by the media, conducting specific sociological research, introducing legislative initiatives etc. The perception of the results of the implementation of the provisions of the constitution is evidenced by law enforcement practice in the form of decisions, generalizations, messages, reports of bodies constitutional control, higher courts, proposals to amend, supplement the constitution, draft new laws and other legal regulations, etc. This the process is underway continuously.

The role of the social environment in the action and implementation of the constitution

Development legal means implementation of constitutional provisions and their consolidation in law have great value for their implementation. The legal mechanism for their use has been determined, and the degree of implementation and the activity of subjects in their implementation depend decisively on a complex of social conditions and factors.

In domestic legal science, issues of social determination, both preliminary and (to a much greater extent) misconduct personalities, social mechanism actions of law. The resolution of these issues is directly related to understanding the social aspects of the operation and implementation of the constitution. However, the social aspects of the problems of implementing the constitution and its provisions have not yet attracted due attention.

To determine the content and structure of the social environment in the implementation of constitutional provisions, the category social environment, the nature of which can be revealed only through the active essence of man, manifested in real connections and relationships. The social environment refers to social conditions that have an active (direct and indirect) impact on the subject of law. The consciousness, activity, activity of the subject of law is the result of his continuous interaction with the social environment. The social environment includes the sphere of such direct and indirect relatively stable interaction of the subject of law with those around him social conditions, during which a certain way of life is formed with specific value orientations, traditions and norms of behavior. The social environment, thus, reveals the diversity, specificity, and, to a certain extent, individuality of the life activity of a subject of law in the same conditions of social development.

The action of the social environment in the implementation of constitutional provisions is not automatic, since it is “assimilated” by the subject of law, refracted through his consciousness. The degree of “assimilation” of the social environment largely depends on the qualities of the subject of law and their activity.

The system of general guarantees - economic, political, spiritual and others - serves as a determining condition that actually ensures the implementation of constitutional provisions.

The concept of social environment guides in general terms not only for registration positive factors social system, but also those negative phenomena that one has to face when implementing constitutional provisions. Identification of negative factors, their consistent overcoming - practical problem in the activities of public authorities, all levels of civil society and its political system, the most important task of legal science.

The social environment, in addition to the general social conditions and factors discussed above, includes the microenvironment, i.e. the immediate (immediate) social environment of subjects of law, which is of exceptional importance for the implementation of constitutional provisions.

The immediate social environment of the individual, as well as social environment in general, it covers various spheres of relationships between subjects of law - material and production, economic, social, political, spiritual and cultural, managerial, psychological, etc.

The conditions and factors that characterize the immediate social environment of subjects of law can play not only a positive role in implementing the requirements of constitutional provisions, but also a negative one. Current negative circumstances can be so strong that the subject of law is able to refuse to implement specific constitutional provisions in certain conditions depending on the place, time, and current situation. It is known that in a number of cases citizens do not want and do not exercise certain fundamental rights and freedoms, although it would seem they should have done so (for example, they do not complain about violations of their rights or freedoms, do not go to court for protection, etc.). d.). The insufficiency and ineffectiveness of legal means of protection and measures of responsibility can lead to adaptability, adaptation of the subject of law to the environment, its uncritical perception and assessment. For this kind of improvement legal guarantees should be addressed Special attention when developing new legislative acts. In connection with the above, it is important to take into account not only purely legal aspects, for example the advantages judicial form defense, but also that the consideration in court of any case related to illegal activities officials, there is wide publicity about the facts of bureaucracy, corruption, violation of constitutional rights and freedoms and legitimate interests of citizens, etc. This is all the more necessary because officials in a number of cases have a negative attitude towards criticism addressed to them.

Effectiveness of the operation and implementation of the constitution

The effectiveness of the constitution is the effectiveness in achieving the goals pursued by the constitution and in the implementation of the legal and social functions of the constitution.

From the point of view of a systemic (managerial) approach, two main groups can be distinguished: goals actions and implementation of the constitution - homeostatic And instrumental.

Homeostatic goals are associated with the establishment and maintenance of a certain constitutional system in the country, with its stability. Instrumental goals are aimed at developing social relations in line with established constitutional foundations public and political system, to actually ensure constitutional values (fundamental rights and freedoms of man and citizen, institutions of democracy, etc.).

Analysis of the effectiveness of constitutional provisions requires not only identifying their role in obtaining a certain result, but also determining the relationship between this result and the purpose for which these provisions were created.

The concept of expediency in this case will mean the compliance of the result of the action and the implementation of constitutional provisions with their goals, achieved the best way, with the lowest social costs, in optimal option. Thus, expediency and efficiency are one-order, but not identical phenomena.

The action and implementation of constitutional provisions can have any consequences - change (increase, decrease), the emergence of new and disappearance of certain phenomena, or their immutability, “conservation”, both in the behavior of subjects and in their consciousness.

When determining the effectiveness of constitutional provisions, it is necessary to compare all the consequences that occurred as a result of their action and implementation in the behavior of subjects of law from the moment the constitution came into force. Failure to comply with constitutional provisions, for example, constitutional law by a person, is also a certain social result.

The implementation of constitutional provisions may produce side effects that were not covered by their goals. These consequences can be both positive and negative in their social significance.

The task arises of “weighing” them, i.e., comparing the positive (planned) result with the negative unforeseen consequences. At the same time, in all likelihood, it is necessary to “weigh” the by-products, positive and negative, in order to more fully determine the effectiveness of constitutional provisions. The higher the degree of effectiveness of action and implementation of constitutional provisions, the more positive consequences, both provided for by the purposes of the constitution and not covered by them, and the less negative consequences.

Measuring the effectiveness of action and implementation of constitutional provisions

Objectively, the effectiveness of action and implementation of constitutional provisions can only be judged if they are measured. Unfortunately, the problem of measuring the effectiveness of action and implementation of constitutional provisions is extremely difficult. The effectiveness of a constitution consists of the effectiveness of its institutions and specific provisions. At the same time, the effectiveness of the action and implementation of individual provisions and institutions of the constitution can ultimately be established only in the system of their action and implementation.

Currently, the effectiveness of the operation and implementation of the constitution is judged on the basis of studying constitutional practice(by the number of constitutional violations, arising constitutional conflicts, by the degree of implementation of fundamental rights and freedoms of citizens, etc.). In Russia, the practice of the Constitutional Court of the Russian Federation, the courts of general and arbitration jurisdiction, Commissioner for Human Rights in the Russian Federation, the Accounts Chamber of the Russian Federation, the Prosecutor's Office of the Russian Federation, the Ministry of Justice of Russia and others law enforcement. A significant role in the mechanism for assessing the effectiveness of action and implementation of the constitution is played by legal science, specifically sociological legal research, public opinion, MASS MEDIA.

The direct (immediate) effect of the norms of the Constitution of the Russian Federation means that, regardless of the presence of legislative acts specifying these norms, bodies representing all three branches of government are obliged to implement them

The court, when deciding a case, applies directly the Constitution when:

a) the provisions enshrined in the norm of the Constitution, based on its meaning, do not require additional regulation and do not contain indications of the possibility of its application, subject to the adoption of a federal law regulating these relations;

b) the court will come to the conclusion that the law in force on the territory of the Russian Federation before the entry into force of the Constitution of the Russian Federation contradicts it;

c) the court comes to the conclusion that the federal law adopted after the entry into force of the Constitution of the Russian Federation is in conflict with the relevant provisions of the Constitution; d) a law or other regulatory legal act adopted by a constituent entity of the Russian Federation on subjects of joint jurisdiction of the Russian Federation and its constituent entities contradicts the Constitution of the Russian Federation, and there is no federal law that should regulate the legal relations considered by the court. In case of doubt about the compliance of any normative act the court asks about the constitutionality of this act to the Constitutional Court of the Russian Federation at any stage of consideration of the case.

14. Constitution of the RSFSR of 1918 (general characteristics).

The Constitution of the RSFSR of 1918 - the constitution of Russia in 1918-1925. It was adopted by a resolution of the V All-Russian Congress of Soviets of Workers, Peasants, Red Army and Cossack Deputies on July 10, 1918. Proclaimed the All-Russian Congress of Councils of Workers, Peasants, Red Army and Cossack Deputies as the highest body of state power.

The basic principles of the Constitution were formulated in its six sections:

I. Declaration of the Rights of Working and Exploited People - it defined

II. General provisions Constitution of the RSFSR;

III. Construction of Soviet power (organization Soviet power in the center and locally);

IV. Active and passive suffrage;

V. Budget law;

VI. About the coat of arms and flag of the RSFSR.

The Declaration defined social basis new statehood - the dictatorship of the proletariat and its political basis- a system of councils of workers, peasants and soldiers' deputies. The first economic transformations were legislated: nationalization of forests, land, mineral resources, transport, banks, and part of industry.

The duration of the Constitution was defined as “the transition from capitalism to socialism.” The state structure of the RSFSR was federal in nature, the subjects of the federation were national republics. It was also envisaged to create regional unions, part of the RSFSR on a federation basis and consisting of several national regions.

The Constitution proclaimed the All-Russian Congress of Councils of Workers', Soldiers', Peasants' and Cossacks' Deputies to be the highest body of power.

The Congress was elected by the All-Russian Central Executive Committee (VTsIK), responsible to it. The All-Russian Central Executive Committee formed the Government of the RSFSR - the Council of People's Commissars, consisting of people's commissars, who headed industry people's commissariats. The local authorities were regional, provincial, district and volost congresses of councils, which formed their own executive committees. City and village councils were created in cities and villages. Competence central authorities power was determined as follows. The All-Russian Congress of Soviets and the All-Russian Central Executive Committee carried out the approval and amendment of the Constitution, admission to the RSFSR, the declaration of war and the conclusion of peace, the general leadership of foreign, domestic and economic policy, established national taxes and duties; the foundations of the organization of the armed forces, the judicial system and legal proceedings formed the national legislation. The All-Russian Congress of Soviets had the exclusive right to change the Constitution and ratify peace treaties.

It is characteristic that legislative branch in the RSFSR carried out three supreme body: All-Russian Congress of Soviets, All-Russian Central Executive Committee and Council of People's Commissars. The latter could issue decrees and orders in the region government controlled, which were of a generally binding nature. The most significant of them were approved by the All-Russian Central Executive Committee. The most important task entrusted to lower-level councils was to implement decisions higher authorities and subordination to them vertically. Horizontally within its territory, local councils were given broad powers to exercise their competence. This principle is called “democratic centralism”. Electoral system, enshrined in the Constitution, reflected the current socio-political situation in the country. Only representatives of certain social groups were allowed to participate in the elections, for which no restrictions were applied on the basis of gender, nationality, residence, education or religion. These groups were united by the concept of “workers”. A significant part of the population was deprived of voting rights: persons using hired labor for profit making purposes; living on “unearned income”; private traders and intermediaries; representatives of the clergy; employees of the gendarmerie, police and security department. The exclusion of “socially alien elements” from the electoral corps did not allow us to consider suffrage as universal. The Constitution established a multi-stage system of elections to councils (a rule that was in force during elections to zemstvos and the State Duma). There were direct elections to village and city councils; delegates at all subsequent levels were elected at the corresponding congresses of councils based on the principles of representation and delegation.

Local authorities state power were local congresses of councils of workers, peasants and Red Army deputies, which were also not permanent bodies and were convened by local executive committees. The permanent provincial councils of workers, peasants and Red Army deputies in those provinces in which they were located were dissolved and replaced by non-permanent congresses of councils of workers, peasants and Red Army deputies. Local government bodies in cities and villages were city councils of workers and Red Army deputies and rural councils of peasant deputies, which were permanent bodies. They were elected by workers and peasants for a period of 3 months. At the same time, members of these councils could be recalled by voters.

15. The procedure for revising and amending the Constitution in the Russian Federation.

The Constitution of the Russian Federation distinguishes between the terms “revision” and “amendment”. A revision is a change in the provisions of Sec. 1, 2 and 9 of the Constitution of the Russian Federation, and they cannot be the subject of consideration by the Federal Assembly of the Russian Federation. Amendments change the content of Chapter. 3-8 of the Constitution of the Russian Federation, which is within the competence of the Russian parliament.

The subjects of the right to submit proposals for amendments and revisions to the provisions of the Constitution of the Russian Federation are:

1. President of the Russian Federation,

2. Council of the Federation,

3. State Duma,

4. Government of the Russian Federation,

5. legislative (representative) bodies of the constituent entities of the Russian Federation,

6. Federation Council or State Duma deputies. - a group of at least one fifth of its members

The procedure for revising Sec. 1, 2 and 9 of the Constitution of the Russian Federation consists of the following stages.

Firstly, the initiative to revise these chapters of the Constitution must be supported by three-fifths of votes 3/5 of total number members of the Federation Council (107 votes) and deputies State Duma(270 votes).

Secondly, if such a decision Federal Assembly is adopted, then the Constitutional Assembly is convened.

Thirdly, the Constitutional Assembly has the right to make one of two decisions: 1) to confirm the immutability of the Constitution of the Russian Federation, then the procedure for revising the Constitution ends;

2) develop a project for a new Russian Constitution.

Fourthly, if the Constitutional Assembly develops new Constitution Russia, then it can be accepted in two ways:

1) in the presence of a qualified majority of two-thirds of the total number of members Constitutional Assembly;

2) submitting the project to a popular vote (referendum). A referendum can be considered effective if more than half of the voters who took part in the voting vote for the new Constitution, provided that more than half of the voters living in the Russian Federation took part in it. This procedure for revising Ch. 1, 2 and 9 of the Constitution of the Russian Federation is intended to ensure the stability of the constitutional system and the protection of the rights and freedoms of Russian citizens.

The procedure for amending the Constitution is established for Ch. from 3rd to 8th.

Amendments to these chapters of the Constitution of the Russian Federation are adopted in the manner prescribed for the adoption of a federal constitutional law. However, these amendments come into force only after approval legislative bodies subjects of the Russian Federation. A proposal for an amendment to the Constitution must contain either the text of a new article (part or clause of an article) of the Constitution of the Russian Federation, or the text new edition articles, or a provision on the exclusion of an article from the Constitution of the Russian Federation. This proposal is submitted to the State Duma. The State Duma considers a draft law on an amendment to the Constitution in three readings. At least two-thirds of the total number of deputies of the State Duma and three-quarters of the total number of members of the Federation Council must vote for its adoption. After which the law is published for general information and sent by the Chairman of the Federation Council to the legislative (representative) bodies of the constituent entities of the Federation for consideration, they are obliged to consider the law on an amendment to the Constitution of the Russian Federation within one year from the date of its adoption. After the legislative (representative) bodies of at least two thirds of the constituent entities of the Russian Federation approve this law, it is sent to the President of the Russian Federation for signing and official publication.

16. Fundamentals of the constitutional system of the Russian Federation (concept, elements, principles).

The constitutional system (in the narrow sense) is a way of organizing the state, enshrined in its Constitution and receiving further regulation in current legislation.

The constitutional system (in a broad sense) is a set of economic, social, political, legal, ideological relations, regulated mainly by the norms of the Constitution, arising in the process of organizing government bodies, government structure and legal connections between the individual, civil society and the state.

The modern concept of a constitutional system is based on three main categories - power, sovereignty, and personal freedom.

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