Topic 6. Fundamentals of the constitutional system of Russia

The constitutional system is a complex concept, broader than the state system, but, in turn, more concretized and legalized in comparison with the social system. In general terms, it can be defined as a legal order in which the democratic constitution of the state is respected. It should be borne in mind that ch. 1 of the Constitution of the Russian Federation fixes only the foundations of the constitutional order of Russia. All facets of the constitutional system of the state (property, land, environmental, administrative, procedural, labor, criminal, family and other legal relations) cannot be prescribed in any normative act, including the country's fundamental law. Detailing of these legal relations is carried out in special laws, in sectoral legislation. The foundations in general are the most important, initial principles that determine the essence of a particular phenomenon. Thus, the constitutional system is a set of relevant social relations, and its foundations are the basic, backbone principles that regulate them. These principles underlie (or, on the contrary, are at the top) of the entire pyramid of the legal system of the state, serve as a guide for multifaceted lawful relations in society.

The inviolability of these principles provides a rather complicated procedure for changing them - Ch. 1 of the Constitution of the Russian Federation (as well as chapters 2 and 9) is more "rigid" in comparison with other chapters and can only be changed as a result of a revision of the Constitution. Thus, any change in the basic constitutional provisions can only be carried out by replacing the old Constitution with a new one (even if the changes are minor and the new Constitution largely coincides with the old one).

In addition, ch. 1 of the Constitution of the Russian Federation has greater legal force in relation to others, including "protected" (ch. 2, 9), constitutional provisions. In accordance with Part 2 of Art. 16 no other provisions of the Constitution of the Russian Federation may contradict the foundations of the constitutional system of the Russian Federation.

Chapter 1 of the Constitution of the Russian Federation does not normatively divide the foundations of the constitutional order of Russia into any types. Nevertheless, they can be combined into certain groups: fixing the organization of the state and state (public) power, the priority of human and civil rights and freedoms, the political and economic foundations of the state and society.

The priority of the rights and freedoms of man and citizen, fixing them as the highest value constitute the humanistic foundations of the constitutional order of Russia. Sufficiently detailed coverage of this issue is contained in themes 7-9. The characteristics of the other groups of foundations of the constitutional system are given below.

6.2. Constitutional characteristics of the Russian state

The main constitutional characteristics of the Russian state are contained in Art. 1, 7 and 14 of the Constitution of the Russian Federation. In accordance with them, the Russian Federation is a democratic, federal, legal state with a republican form of government, as well as a social and secular state. All these characteristics are closely related to each other, as well as to other foundations of the constitutional order.

The declaration of Russia as a democratic state is of fundamental importance for a country with a strong authoritarian tradition. The democratic nature of the state (from the Greek demos and kratos - the power of the people) means that:

▪ firstly, the only source of power in the country (and bearer of sovereignty) is the multinational people of Russia;

▪ secondly, power in the country is exercised in accordance with the will of the majority while respecting and protecting the rights of the minority;

▪ thirdly, power in Russia is formed and exercised in accordance with democratic procedures, primarily through free elections and referendums.

All this is designed to ensure the recognition and real implementation of human rights and freedoms in the country at the level of international requirements.

Article 1 of the Constitution of the Russian Federation proclaims Russia a federal state. This means that of the two forms of territorial structure - unitary and federal - Russia has chosen the latter. The principles of the federal structure are concretized in some other articles of Ch. 1 (Art. 4, 5, 6, 11), as well as in ch. 3 "Federal structure" of the Constitution of the Russian Federation.

Regarding the proclamation of the Russian Federation as a legal state in Art. 1 of the Constitution of the Russian Federation, some scientists and practitioners believe that such a statement should rather be in the preamble of the Basic Law (i.e., this is not yet a given, but only a goal to which Russia is striving). Of course, modern Russia cannot be considered a legal state. At the same time, after the adoption of the 1993 Constitution in Russia, a fundamentally different legal situation developed, allowing us to assume that a return to the previous, anti-legal, totalitarian regime will no longer happen. The Constitution of the Russian Federation fully complies with the characteristics of the constitution of a rule-of-law state, since:

▪ recognizes the fundamental inalienable human rights and freedoms as the highest value and establishes a system of their guarantees at the level of international standards;

▪ consolidates the dominance of law in the life of society and the state, the supremacy of the Constitution and legal laws (and, accordingly, the prohibition of illegal laws), and the binding of the state by law;

▪ establishes legal principles and forms of exercise of power, a system of division of power (“horizontally” and “vertically”) and the interaction of various branches and levels of government.

The formation of the rule of law is a complex and lengthy process. The country must "grow" to its Constitution, overcoming the stereotypes of legal nihilism, raising the legal culture of citizens and government institutions at all levels, and forming a civil society. Based on this, the consolidation of the principle of legal statehood in the main constitutional text (ie, as a norm of direct action) seems to be justified. This should be considered an unshakable foundation and an important guarantee of Russia's progressive movement towards a state of law.

Fixing in Art. 1 of the Constitution of the Russian Federation as one of the foundations of the constitutional system of the republican form of government means that:

▪ firstly, state power in Russia is exercised only by elected bodies (or bodies and officials receiving power from certain elected bodies), the head of state receives power from the people, voters, and not by inheritance;

▪ secondly, the transition to another - monarchical - form of government is possible only through the adoption of a new constitution of the country; an encroachment on the republican form of government is unconstitutional and is punishable by law;

▪ thirdly, the monarchical form of government cannot be established (or even mentioned) in any of the constituent entities of the Russian Federation.

The Constitution of the Russian Federation does not give a specific, normatively expressed answer to the question about the variety of the republican form of government in Russia. The Russian Federation is often referred to as a presidential (or even super-presidential) republic. However, an analysis of the constitutional norms that fix the status of various state authorities (see Chapters 4-7 of the Constitution of the Russian Federation), their interaction with each other, allows us to conclude that, despite the special position of the President of the Russian Federation in the system of state authorities, the Basic Law in Russia a semi-presidential (mixed) republic was established. It is this mixed form of republic that is the predominant form of government in the modern world. A mixed form of government is also fixed for the subjects of the Russian Federation by the Federal Law of 1999 "On the General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation."

In addition to the characteristics given in Art. 1 of the Constitution of the Russian Federation, Art. 7 proclaims Russia a social state. Unlike the constitutions of a number of foreign states (Germany, France, Turkey, Spain, etc.), in which the term "welfare state" was enshrined quite a long time ago, this concept was used for the first time in the Russian Constitution. The concepts of social statehood and legal statehood cannot be opposed, a true social state can only be legal. Moreover, a welfare state without a legal component allows, among other things, an arbitrary redistribution of national wealth in favor of the socially weak, equalization, and an extensive system of benefits and privileges. This leads to the generation of a dependent ideology of the population, the loss of people's vital initiative, the imposition on the state of duties that are very difficult to properly fulfill (primarily due to the unfavorable economic situation).

The social legal state seeks to create equal opportunities for all members of society, exclude the regulation of social relations with the help of privileges, acts as a guarantor and defender of the rights, freedoms and interests of not just one or several social groups, but all citizens, the whole society. It is this approach in the social policy of the state that creates conditions that ensure a decent life and free development of a person, guarantee the satisfaction of socio-economic needs, and the receipt of the necessary social benefits.

The main directions of the social policy of the Russian Federation as a social legal state are specified in Part 2 of Art. 7 of the Constitution of the Russian Federation: the protection of labor and health of people, the establishment of a guaranteed minimum wage, the provision of state support for the family, motherhood, fatherhood and childhood, the disabled and the elderly, the development of a system of social services, pensions, benefits and other guarantees of social protection. Detailing of these areas is carried out in sectoral legislation: civil, family, housing, labor, pension, social, etc. These provisions are directly connected with socio-economic and cultural human rights in the Russian Federation. At the same time, the Constitution of the Russian Federation proceeds from the fact that ensuring a decent life and free development of a person should be a matter of his mind, hands, initiative and enterprise, and the essence of social legal statehood is to create the necessary conditions for this.

The constitutional characteristics of the Russian state discussed above are supplemented by the provisions of Art. 14 of the Constitution of the Russian Federation, which proclaims Russia a secular state. Despite the special, traditionally strong role of the Russian Orthodox Church in the life of Russian society, the Constitution of the Russian Federation establishes that no religion in Russia can be established as a state or compulsory one, and all religious associations are separated from the state and are equal before the law.

The Constitution of the Russian Federation does not directly establish the separation of the school from the church, however, this sign of the secular nature of the Russian state is enshrined in sectoral legislation, in particular, in the Law of the Russian Federation of July 10.07.92, 3266 No. 1-26.09.1997 "On Education" as amended. and additional and the Federal Law of September 125, XNUMX No. XNUMX-FZ "On Freedom of Conscience and Religious Associations", amended. and additional In Russia, the principle of the secular nature of education in state and municipal educational institutions is normatively fixed; it is permissible for religious organizations to teach religion to children in such institutions only outside the framework of the educational program at the request of parents or persons replacing them, with the consent of the children and in agreement with the relevant local government.

The constitutional principles of the functioning (exercise) of public authority are directly related to the considered characteristics of the Russian state: unity and separation of power, source of power, forms of exercise of power, recognition of local self-government as an independent level of public authority, etc.

6.3. Economic and political foundations of the constitutional order

In recent decades, there has been a tendency to expand the object of constitutional and legal regulation by including here the foundations of the political, social, economic and spiritual life of society. It is of fundamental importance that legal regulation in general and constitutional and legal regulation in particular should cover precisely the foundations of these areas of social relations, since excessive state interference in the affairs of civil society indicates the undemocratic, non-legal nature of such a state. The Constitution of the Russian Federation (Chapter 1) also contains some basic principles that can be attributed to the economic and political foundations of the constitutional system of Russia.

In the approach to state regulation of economic activity in Russia in the 1990s. there have been fundamental changes: the state today does not establish an economic system and does not carry out detailed regulation of all aspects of economic activity, but only provides legal means for the functioning of a market economy. It is this approach enshrined in the Russian Basic Law.

The constitutional principles of a market economy in Russia include (Art. 8, 9 of the Constitution of the Russian Federation): the unity of the economic space; free movement of goods, services and financial resources; freedom of economic activity and state support for competition; diversity and equality of forms of ownership.

These constitutional provisions correspond to the norms of Art. 71 and 72 of the Constitution of the Russian Federation, in accordance with which the establishment of the legal foundations of a single market, financial, currency, credit, customs regulation, money emission, the basics of pricing policy, civil, land and environmental legislation, the establishment of a tax system and general principles of taxation and fees in Russia referred either to the exclusive jurisdiction of the Russian Federation, or to the joint jurisdiction of the Russian Federation and its subjects (with the unconditional priority of federal norms). Thus, in none of the constituent parts of Russia can its own legal regulation of the noted important principles of the economic system be different from the national approaches.

The basic principles of a market economy, enshrined in Ch. 1 of the Constitution of the Russian Federation, are developed in other constitutional provisions. So, in the development of the norm on supporting competition (part 1 of article 8), part 2 of art. 34 of the Constitution prohibits economic activities aimed at monopolization and unfair competition. One of the first Russian market laws was the Law of the RSFSR dated March 22.03.1991, 948 No. 1-XNUMX "On Competition and Restriction of Monopolistic Activity in Commodity Markets".

Property relations are civil law relations, although the institution of property rights is, without a doubt, complex and intersectoral. Here it is possible to isolate, in addition to the proper legal, philosophical, economic, social, ethical, moral, psychological and other aspects. It is property that determines the political, economic, social systems, the spiritual sphere of society. There are well-founded views on the right to property as a political right. That is why the provisions of Part 2 of Art. 8 of the Constitution of the Russian Federation on the recognition and equal protection of private, state, municipal and other forms of ownership.

The principle of the inviolability of property in the Russian Federation cannot be interpreted as absolute: the right to property (both private and public) in any modern civilized state is no longer regarded as "sacred and inviolable", like any right, it can be limited. However, in accordance with Part 3 of Art. 35 of the Constitution of the Russian Federation, no one can be deprived of his property except by a court decision, and the expropriation of property for state needs can be carried out only on condition of preliminary and equivalent compensation. This provision requires clarification.

Firstly, we are not talking about property in the narrow sense of the word, but about property in general, including property rights (for example, those held in securities, as well as wages, including those not received, etc.).

Secondly, the term "court decision" should be interpreted broadly, meaning by it a decision as such, i.e. a procedural act of a court considering civil cases, and a verdict of a court considering criminal cases (in particular, when applying confiscation of property or a fine) .

Thirdly, this constitutional provision does not comply with a number of norms of sectoral (tax, customs, administrative) legislation that allow the deprivation of property of individuals without a court decision, in particular, on the undisputed debiting of tax arrears from the bank accounts of taxpayers - legal entities, on the withdrawal of administrative procedure for property constituting the subject of smuggling that has not passed proper customs clearance, tools for committing a crime, illegal fishing, catching, etc.

When evaluating and resolving such legal conflicts, one cannot do without taking into account the legal position of the Constitutional Court of the Russian Federation, which has been repeatedly expressed in a number of resolutions and definitions. The Constitutional Court of the Russian Federation confirmed the inviolability of the constitutional provision on the impossibility of depriving someone of the right to property (primarily the right to property) without a court decision, recognizing the unconstitutionality of the relevant provisions of the contested normative acts (the Customs Code of the Russian Federation, the Code of the Russian Federation on Administrative Offenses, etc.). However, the Court clarified that temporary seizure of property from private persons in an administrative manner in order to realize public interests (in particular, when committing customs and other administrative offenses) is not ruled out. Such preventive measures are aimed at ensuring the safety of property that is subject to confiscation, and do not in themselves entail the termination of ownership of this property. The moment of termination of the right of ownership of confiscated property from private persons and, accordingly, the emergence of state ownership of this property is the entry into force of a court decision or the expiration of the period for appealing a decision on confiscation. In addition, a court decision is not required to seize property from individuals for offenses committed in cases where a citizen or legal entity voluntarily agrees to pay a certain amount (for example, a fine).

Excessive interference of the state is unacceptable not only in the sphere of the economy, but also in the sphere of ideology and politics. The Constitution of the Russian Federation does not fix the political system of society, proceeding from the fact that this system is ultimately created by the initiative of free individuals. As one of the foundations of the constitutional order, Art. 13 of the Constitution of the Russian Federation establishes ideological and political diversity (pluralism). These provisions are directly related to such constitutional rights and freedoms as freedom of conscience and religion, freedom of expression and belief, freedom of thought and speech, freedom of information, freedom of creativity, the right to association, freedom of assembly, rallies and demonstrations, etc. In Russia, there is no ideology cannot be established as state or obligatory. Ideological persecution of officially unapproved directions in science, art, religious activity, etc. is unacceptable.

Political diversity is based on ideological diversity, manifested in the presence of various areas of practical political activity. The most important role in this activity belongs to political parties and other public associations pursuing certain political goals. The status of various types of public associations (public organizations, public movements, public funds, public institutions, bodies of public amateur performance, trade unions, religious organizations, etc.) is enshrined in the Federal Law of May 19.05.95, 82 No. and additional, as well as in other laws and other legal acts.

In a number of public associations, a special place belongs to political parties. If a public organization (or association) can be created for the implementation of any non-commercial goals, then an organization that does not pursue political goals cannot be a political party. The Constitution of the Russian Federation practically does not say anything specifically about political parties, while detailed regulation of the status of this type of public associations is carried out by the Federal Law of July 11.07.01, 95 No. and additional The Constitution of the Russian Federation and the current legislation formally and legally establish a multi-party system in Russia (it is the multi-party system that is the external expression of political pluralism).

Fixing the equality of political parties and public associations before the law, Part 5 of Art. 13 of the Constitution of the Russian Federation defines the limits of ideological and political pluralism. A democratic state should not allow the activities of politicized civil society institutions that seek to change the foundations of the constitutional order by unconstitutional, violent means. Legal statehood is incompatible with the spread of fascist, racist, anti-Semitic, anti-Islamic and other similar ideologies in society. Therefore, in Russia a number of prohibitions have been established on the creation and activities of such public associations, the goals or actions of which are aimed at: violent change in the foundations of the constitutional order; violation of the integrity of the Russian Federation; undermining the security of the state; creation of armed formations; inciting social, racial, national and religious hatred.

Author: Nekrasov S.I.

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