Topic 4. Constitution of the Russian Federation: concept, essence, legal properties

The term "constitution" (from lat. constitutio - establishment) has a long history, it was used in ancient Greece and ancient Rome. However, in the current understanding (that is, as the basic law of the state), it began to be applied in modern times, in the era of bourgeois revolutions and corresponding state-legal transformations. In general, the constitution is a mandatory attribute and the most important institution of democracy. The current Constitution of the Russian Federation is a referendum constitution, it was adopted on December 12, 1993 at an all-Russian referendum.

With all the variety of approaches to the concept of a constitution (which is due to a different understanding of the subject of constitutional law), it can be defined as the fundamental law of the state, which has the highest legal force, fixes and regulates basic social relations in the field of the legal status of the individual, civil society institutions, the organization of the state and the functioning of the public authorities.

It is with the concept of the constitution that its essence is connected: the basic law of the state is called upon to serve as the main limiter for power in its relations with man and society.

The essence of the Constitution is manifested through its main legal properties, i.e., the characteristic features that determine the qualitative originality of this document:

▪ acts as the basic law of the state;

▪ has the highest legal force (legal supremacy);

▪ serves as the basis of the entire legal system of the country;

▪ stable.

Sometimes the properties (features) of the constitution include other signs - legitimacy, continuity, prospects, reality, etc.

The Constitution of the Russian Federation (as well as any other state) is the Basic Law of the country ("the law of laws"). Despite the fact that this term is absent in the official title and text (unlike, for example, the Constitution of the RSFSR of 1978, the constitutions of some republics - subjects of the Russian Federation or the constitutions of the Federal Republic of Germany, Mongolia, Guinea and other states), this property follows from the very legal nature and essence of the constitution.

The Constitution of the Russian Federation has the highest legal force in relation to all other legal acts: not a single legal act adopted in the country (federal law, act of the President of the Russian Federation, the Government of the Russian Federation, an act of regional, municipal or departmental lawmaking, an agreement, a court decision, etc. ), cannot contradict the Basic Law, and in case of contradiction (legal conflicts), the norms of the Constitution have priority. The supremacy of the Constitution of the Russian Federation is also manifested in relation to the previous Russian legislation: in accordance with Part 2 of Sec. 2 of the Constitution of the Russian Federation, laws and other legal acts that were in force on the territory of the Russian Federation before the entry into force of the Constitution are applied to the extent that they do not contradict it. At the same time, for some provisions of the former legislation, in particular criminal procedure, which do not correspond to the Basic Law, a transitional period has been established to bring them into line with the Constitution of the Russian Federation. The supremacy of the Constitution of the Russian Federation is mentioned directly in the constitutional text (part 2, article 4, part 1,2, article 15). Ensuring the legal supremacy of the Constitution of the Russian Federation is the task of all state bodies and officials without exception, however, the leading place in the mechanism for protecting the Constitution belongs to a specialized body of constitutional control - the Constitutional Court of the Russian Federation.

The Constitution of the Russian Federation is the core of the legal system of the state, the basis for the development of current (industry) legislation. In addition to the fact that the Constitution of the Russian Federation establishes the competence of various public authorities for rule-making, defines the main goals of such rule-making, the areas of public relations that should be regulated by federal constitutional laws, federal laws, decrees of the President of the Russian Federation, regulatory legal acts of state authorities of the constituent entities of the Russian Federation, etc. , it also contains many basic provisions for the development of other branches of law. Thus, the civil legislation of Russia is built taking into account the constitutional principles of diversity and equality of forms of ownership, the unity of the economic space, freedom of economic activity and entrepreneurship, support for fair competition, etc. (Articles 8, 34, 35, etc.); labor legislation is built on the basis of constitutional provisions on freedom of labor, the right to rest, to annual paid leave, to resolve labor disputes, etc. (Article 37); family law cannot but take into account the provisions of Art. 38 of the Constitution of the Russian Federation on the state protection of the family, motherhood and childhood, the fundamental rights and obligations of parents and children, etc. Thus, the Constitution of the Russian Federation is the main source not only of constitutional law, but also of all other branches of the Russian system of law. At the same time, constitutional norms are of a constituent nature, they are primary, there are no other prescriptions of positive law for the Basic Law of the country (sometimes the constituent nature of prescriptions is singled out as an independent property of the Constitution).

The stability of the Constitution is manifested in the establishment of a special procedure for its change (in comparison with laws and other legal acts). As the Basic Law of the state, the core of the legal system of the Constitution of the Russian Federation must be protected from frequent and arbitrary changes in favor of various political forces that replace each other in power in the country.

From the point of view of the order of change, the Russian Constitution is "rigid" (in contrast to the "soft" or "flexible" constitutions of some states - Great Britain, Georgia, India, New Zealand, etc., where changes to the constitution are made in the same order as as in ordinary laws, or by a fairly simple procedure). The rigidity of the Constitution of the Russian Federation is manifested in the material and procedural aspects. The first is that, following world practice, the Constitution of the Russian Federation contains so-called "protected" provisions that cannot be changed by amending the constitutional text. This is ch. 1 "Fundamentals of the constitutional system", Ch. 2 "Rights and freedoms of man and citizen" and Ch. 9 "Constitutional amendments and revision of the Constitution". The provisions of these chapters can only be changed by adopting a new Constitution of the country, i.e. the legislative function of the Parliament in this case is limited. The remaining chapters of the Constitution (Ch. 3-8) can be changed by the Federal Assembly, but according to a more complicated procedure. In connection with the foregoing, one should distinguish between the concepts of "revision of the Constitution" (if we are talking about amending the "protected" chapters) and "amending the Constitution" (if we mean changes to Chapters 3-8).

The second, procedural (procedural) aspect of the "rigidity" of the Constitution of the Russian Federation is the establishment of a rather complicated procedure for changing the Basic Law. The rules here are as follows. Firstly, the circle of subjects of the right of legislative initiative is narrowed. If, as a general rule, the President of the Russian Federation, the Federation Council and each of its members, each deputy of the State Duma, the Government of the Russian Federation, the legislative (representative) bodies of the constituent entities of the Russian Federation, as well as the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation on issues of their jurisdiction (part 1 of article 104 of the Constitution of the Russian Federation), then only the head of state, the Federation Council and the State Duma as a whole or groups of at least 1/5 of the members can initiate amendments to the Constitution of the country (act as subjects of constitutional legislative initiative) each of the chambers, the Government of the Russian Federation and regional parliaments (Article 134 of the Constitution). At the same time, the popularly elected incumbent President of the Russian Federation has the right to constitutional legislative initiative. In accordance with Part 3 of Art. 92 of the Constitution of the Russian Federation, the acting President of the Russian Federation (Chairman of the Government of the Russian Federation) is not entitled to make proposals for amendments and revision of the provisions of the Basic Law.

Secondly, the procedures for revising the Constitution of the Russian Federation and making amendments to it differ significantly. To revise the provisions of Ch. 1, 2 and 9 of the Constitution of the Russian Federation, a special body must be convened - the Constitutional Assembly. The status of this body should be determined by a federal constitutional law, but such a law has not yet been adopted, and it is currently impossible to speak definitely about the composition, the procedure for the formation and convocation of the Constitutional Assembly, the terms of its powers, procedural aspects, etc. at present. The Constitutional Assembly must decide whether it agrees in principle with the proposal to revise the Constitution of the Russian Federation or not. In the latter case, the Constitutional Assembly must by a special decision confirm the invariability of the current Constitution. If the Constitutional Assembly agrees with the proposal to revise the Constitution, then it must develop a draft of a new Basic Law (even if the proposed change is insignificant in scope and concerns, for example, only one article). The fate of the developed project can also be decided in different ways. The first option - it is adopted by the Constitutional Assembly itself by a qualified majority of votes (2/3 of the total number of its members). The second option - the draft of the new Constitution of the Russian Federation is submitted to a popular vote (in this case, in order for the referendum to be considered valid, a turnout threshold is set: more than half of the voters must take part in it, and more than half of the votes of the voters who took part in the voting are required for a positive decision) .

The procedure for changing the provisions of Ch. 3-8 of the Constitution of the Russian Federation is defined in Art. 136 of the Basic Law and in the Federal Law of March 04.03.1998, 33 No. 2-FZ "On the procedure for the adoption and entry into force of amendments to the Constitution of the Russian Federation." Such changes are made through the adoption of special laws on amendments. The mandatory procedural requirements here are as follows: approval by a majority of at least 3/3 of the total (i.e., constitutionally established) number of deputies of the State Duma and 4/2 of the votes of the total number of members of the Federation Council, as well as by legislative authorities of at least 3/ XNUMX constituent entities of the Russian Federation (regional parliaments must decide on approval or disapproval of the law on amendments received from the Federation Council within a year).

With regard to the adopted laws on amendments, the President of the Russian Federation does not have the right to veto: within 14 days they must be signed by him and made public. Within a month after the entry into force of the law on amendments, the President of the Russian Federation must officially publish a new (amended) text of the Constitution of the Russian Federation. If the law on an amendment (amendments) to the Constitution of the Russian Federation does not receive the approval of the legislative (representative) bodies of state power of at least 2/3 of the constituent entities of the Russian Federation, the repeated submission of a proposal on this amendment (these amendments) to the State Duma is allowed no earlier than after one year from the date of establishment of the results of the consideration of the law by the regional parliaments. The results of the consideration are established and announced by the Federation Council, while the decision of the Federation Council on establishing the results of the consideration within seven days from the date of its adoption may be appealed to the Supreme Court of the Russian Federation by the President of the Russian Federation or the legislative body of any constituent entity of the Russian Federation.

The specified rigid procedure for changing the Constitution of the Russian Federation does not apply to the procedure for changing only one constitutional norm - Part 1 of Art. 65, defining the composition of the Russian Federation. Amendments to this article are made either on the basis of a federal constitutional law on changing the composition of the Russian Federation, or by a presidential decree on the basis of a decision by a state authority of a constituent entity of the Russian Federation to change its name.

The considered complex procedure for changing the Russian Constitution is designed to ensure the stability of the political and legal system, the Basic Law of the state in general and the basic principles (the foundations of the constitutional system that make up the legal status of the individual) in particular. At the same time, it should be borne in mind that legal norms by themselves do not yet guarantee the stability of the Constitution. Political and historical factors play a huge role here. The stability of the Constitution should not be considered as its immutability: cardinal changes in political and social reality must necessarily entail changes in the Basic Law of the state, otherwise social instability in society is possible. In addition, the Constitution of the Russian Federation is a “living” constitution: while its text has not changed so far (individual changes in part 1 of article 65 are not fundamental, essential), constitutional provisions are constantly and very actively developing through the adopted federal constitutional laws and federal laws, acts of the Constitutional Court of the Russian Federation, emerging constitutional customs, etc.

The Constitution of the Russian Federation does not provide for the possibility and procedure for changing the preamble and the norms of Sec. 2. This is explained as follows. The preamble is that part of the Constitution of the Russian Federation, which is, on the one hand, declarative (largely moral, moral), and on the other, fundamental, unshakable, and under the current Constitution, it must remain unchanged. Section 2 of the Constitution of the Russian Federation contains final and transitional provisions, the purpose of which, respectively, is to ensure the stability of the legal system of the state during the transitional period, and changes to such provisions may violate this stability. In addition, many of the rules 2 actually ceased to be valid due to the end of the transitional period established for them and the adoption of relevant laws on the basis of the current Constitution of the Russian Federation.

The Constitution of the Russian Federation is a codified (consolidated) constitution, that is, it is a single, rather concise document containing fundamental provisions that consolidate and regulate various aspects of social relations. In this it differs from the uncodified constitutions of some states, for example, Great Britain, Israel, which consist of a large set of various sources, including unwritten ones.

Structurally, the Constitution of the Russian Federation consists of a preamble (containing declarative, although quite significant provisions) and two sections. Section 1 is the main one in terms of content and includes nine chapters. In ch. 1 "Fundamentals of the constitutional system" sets out the fundamental provisions regarding the foundations of the state and social structure of modern Russia. Ch. 2 "Rights and freedoms of man and citizen" contains a description of various aspects of the constitutional and legal status of the individual in the Russian Federation. In ch. 3 "Federal structure" enshrined the basic principles of Russian federalism. The next three chapters (Chapter 4 "President of the Russian Federation", Chapter 5 "Federal Assembly", Chapter 6 "Government of the Russian Federation") establish the foundations of the legal status of the relevant state authorities at the federal level. In ch. 7 "Judicial power" sets out the constitutional foundations of the judicial system and the judiciary of the Russian Federation, and in Ch. 8 "Local self-government" - the constitutional foundations for the implementation of local self-government in Russia. Chapter 9 "Constitutional amendments and revision of the Constitution" contains substantive and procedural norms that determine the procedure for amending the Basic Law.

Section 2 "Final and Transitional Provisions" is small in scope, a significant part of the norms of this section has already lost force, since the transitional periods for the settlement of relevant social relations have expired only on the basis of the provisions of the Constitution of the Russian Federation of 1993. At the same time, certain provisions of this section, in in particular, about the supremacy of the Constitution of the Russian Federation in relation to the Federal Treaty of 1992 and other intra-federal agreements, as well as to the previous Russian legislation, continue to be important and fundamental.

Knowledge of the structure of the Constitution of the Russian Federation not only helps to navigate the text of the Basic Law of Russia. As a rule, the system of the branch of constitutional law in Russia, as well as the structure of the training course of the same name, are, as a rule, "attached" to the structure of the Constitution. However, it is by no means possible to identify the structure of the Constitution and the system of constitutional law. An analogy between these concepts is possible only in terms of the name and sequence of its constituent parts, but not in terms of volume and content. Constitutional law is a huge set of legal norms, and not just the norms of the Constitution of the Russian Federation itself, it cannot be imagined without the provisions of such acts as: federal constitutional laws on a referendum, on the Constitutional Court of the Russian Federation, on the Government of the Russian Federation, on the judicial system, on the Commissioner for Rights of a person in the Russian Federation, etc., federal laws on citizenship, on the election of the President of the Russian Federation, on the election of deputies of the State Duma, on the procedure for forming the Federation Council, on the general principles of organizing legislative (representative) and executive bodies of state power of the constituent entities of the Russian Federation, etc., regulations of the State Duma and the Federation Council, many decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation, acts of the Constitutional Court of the Russian Federation, constitutions, charters and other regulatory legal acts of the constituent entities of the Russian Federation, etc. Accordingly, the academic discipline "Constitutional Law of Russia" cannot be mastered well, focusing on studying only actually to constitutional norms.

The considered essence and legal properties of the Constitution of the Russian Federation are fully applicable to the characterization of the constitution (charter) of each subject of the Russian Federation, which, being the basic law of the corresponding subject, occupies a special (central) place in its legal system.

Author: Nekrasov S.I.

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