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Constitutional law of the Russian Federation. Lecture notes: briefly, the most important

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Table of contents

1. Russian constitutional law as a branch of law, science and academic discipline (Subject, method and system of constitutional law of Russia, its place in the system of national law. Features of constitutional legal norms and constitutional legal relations)
2. Constitutional development of Russia (Ideas of constitutionalism in Russia before October 1917. Constitutional (state) law of Russia in the Soviet (socialist) period. The formation of modern constitutionalism in Russia)
3. Sources of Russian constitutional law
4. The Constitution of the Russian Federation: concept, essence, legal properties
5. The Constitutional Court of the Russian Federation is the main body of legal protection of the Constitution of the Russian Federation (The procedure for the formation and organization of the Constitutional Court of the Russian Federation. The competence of the Constitutional Court of the Russian Federation. Decisions of the Constitutional Court of the Russian Federation)
6. Fundamentals of the constitutional system of Russia (The concept of the constitutional system and its foundations. Constitutional characteristics of the Russian state. Economic and political foundations of the constitutional system)
7. The concept of the legal status of the individual. The system of human and civil rights and freedoms in the Russian Federation (General characteristics of the constitutional and legal status of the individual. Classification of the rights and freedoms of man and citizen. Constitutional duties of man and citizen)
8. Institute of Citizenship (The concept and principles of citizenship. Grounds for the acquisition and loss of citizenship. Dual citizenship and statelessness. Legal status of foreigners)
9. Guarantees of human and civil rights and freedoms
10. The concept and principles of Russian federalism (Federation and federalism: concept and essence. Origins and formation of federalism in Russia. Constitutional principles of Russian federalism)
11. The composition of the federation in Russia and the constitutional and legal status of the Russian Federation and its subjects (Composition of the Russian Federation and the constitutional basis for its change. Fundamentals of the constitutional and legal status of the Russian Federation and its subjects)
12. Organization of state power in the subjects of the Russian Federation (Institutional organization of state power at the regional level. Main directions and forms of interaction between government bodies of the constituent entities of the Russian Federation. Relationship between federal and regional government bodies)
13. Institutions of direct democracy. General characteristics of suffrage

Topic 1. Constitutional law of Russia as a branch of law, science and academic discipline

"Constitutional law" is an ambiguous term, it is used, as a rule, in three aspects: as a branch of law, as a corresponding branch of science, and as an academic discipline. At the same time, a branch of law is usually called a set of legal norms (sub-branches, institutions) that regulate a certain range of social relations that fall under the subject of this branch. A branch of science is a body of knowledge (teachings, theories, views, hypotheses, etc.) about the relevant branch of law, history, regularities and prospects for the development of legal relations in this branch, improvement of legislation and other sources of legal regulation, etc. Academic discipline (training course ), as a rule, is based on the current legal norms of the relevant industry and represents a body of knowledge about both these current norms and the state of science.

1.1. The subject, method and system of constitutional law in Russia, its place in the system of national law

The main defining criteria of any branch of law are an independent subject and a specific method of legal regulation. The subject of any branch of law consists of certain groups of social relations regulated by the norms of this branch.

In accordance with the prevailing approach to understanding the subject of constitutional law (sometimes the term "object of constitutional and legal regulation" is used), constitutional law in Russia, as in any country, regulates two main blocks of social relations:

1) related to the legal status of the individual and its relationship with the state and civil society;

2) related to the organization of the state and the functioning of public authority.

Two fundamental points should be kept in mind here. Firstly, being the basic, backbone branch of the national system of law, constitutional law regulates only the foundations of these social relations, while detailed regulation of various aspects of the legal status of an individual (rights, obligations, guarantees and responsibilities of a citizen as an owner, land user, employee, pensioner, consumer, entrepreneur, civil servant, witness, pedestrian, etc.), as well as the status and functioning of various state bodies and other government institutions, is carried out by the norms of other branches of Russian law (civil, land, labor, administrative, procedural, etc.). At the same time, there are relations regulated by the norms of only (or mainly) constitutional law - the status of the President of the Russian Federation, the chambers of the Federal Assembly - the Parliament of the Russian Federation, the legislative process, etc.

Secondly, from the second half of the XX century. in the world there is a tendency to expand the subject of constitutional and legal regulation. Various institutions of civil society (public associations, political parties, trade unions, church, family, school, labor collectives, cultural and sports organizations, community amateur performance groups, etc.) increasingly fall under this regulation, through which a person integrates into public life and which often act as a kind of mediator in the relationship between the individual and the state. This trend is also visible in Russia, although we do not have detailed regulation of the political, social, economic and spiritual spheres of society at the level of the main law.

Like any branch of law, constitutional law affects regulated social relations through a variety of legal techniques, means and methods (prescriptions, permissions, prohibitions, etc.). It is impossible to talk about the presence in constitutional law of its own method of legal regulation, but it should be emphasized that the distinctive feature of the method of constitutional and legal regulation is its imperativeness, the predominance of rigid, imperious prescriptions and rules.

Thus, the constitutional law of Russia is the leading, backbone branch of Russian law, a set of legal norms that fix and regulate the foundations of the legal status of an individual, public associations and other institutions of civil society, the economic, political, social and spiritual life of society, the organization of the state and the functioning of public authority. .

It is constitutional law that underlies the entire legal system of Russia, the Russian state and society operate on the basis of the norms of this branch of law, constitutional norms underlie the developed sectoral legislation of the Russian Federation.

The system of any branch of law is formed by the norms of law that make up this branch, united into institutions (sub-institutions) and sub-sectors. Describing the system of constitutional law in Russia, it should be noted that, firstly, in contrast to the "binary" branches (civil law - civil process, criminal law - criminal process, administrative law - administrative process, etc.), in constitutional law it is difficult to single out purely substantive constitutional law and constitutional process, although there are certainly procedural norms in constitutional law. These norms govern the dynamics of the legislative process, the electoral process, the holding of a referendum, the procedure for dismissal of the President of the Russian Federation, heads of subjects of the Russian Federation or the dissolution of representative bodies of power, etc.

Secondly, in the system of constitutional law, unlike many other branches of the national system of law (civil, administrative, criminal, labor, land, etc.), it is difficult to distinguish between general and special parts. Usually, the constituent sub-sectors and institutions are directly included in the system of constitutional law. At the same time, there is no clear boundary between sub-sectors and institutions (sub-institutions): in particular, it is difficult to correlate the scope and content of the institution of state power, on the one hand, and the sub-sectors of parliamentary law and electoral law, the institution of the head of state, on the other.

At the same time, with a certain degree of conditionality, two parts can be distinguished in the system of constitutional law in Russia:

1. General provisions, which include the following institutions:

▪ The Constitution of the Russian Federation and its properties;

▪ foundations of the constitutional system of Russia;

▪ the basics of the constitutional and legal status of the individual (including the institution of citizenship in the Russian Federation).

2. The constitutional system of power (institutional and territorial aspects), including the following sub-sectors and institutions:

▪ parliamentary law of the Russian Federation;

▪ electoral law and the electoral process in the Russian Federation;

▪ institution of the head of state;

▪ Institute of the Government of the Russian Federation;

▪ constitutional foundations of the judicial system, judicial power and prosecutor's office in the Russian Federation;

▪ territorial organization of public power (federal structure of Russia and constitutional foundations of local self-government).

Each component of the system of constitutional law is a corresponding set of constitutional and legal norms with its narrower subject of legal regulation, a certain range of subjects and specific sources.

1.2. Features of constitutional legal norms and constitutional legal relations

Along with the general features inherent in any legal norm (universal, non-personalized character, consciously volitional character, formal certainty, provision with the power of state coercion, etc.), constitutional legal norms have a number of distinctive features.

▪ Unlike the norms of other branches of law, some constitutional and legal norms are declarative in nature; such norms cannot always give rise to a specific legal relationship or form the basis of a law enforcement decision; Constitutional law is characterized by the presence of norms-principles, norms-goals, etc. Examples of such norms are the provisions of the preamble of the Constitution of the Russian Federation, Art. 1 ("The Russian Federation... is a democratic..., rule-of-law state..."), Art. 2 (“Man, his rights and freedoms are the highest value...”), etc. However, the above does not detract from the significance of the constitutional and legal norms under consideration: being prescriptions of a general nature, they are of significant importance not only in the social, political, ideological, but and in legal terms (these norms, in particular, are regularly referred to by the Constitutional Court of the Russian Federation in its acts). In addition, most of the constitutional and legal norms (establishing the system of power and the status of public authorities, the grounds for acquiring Russian citizenship, the delimitation of jurisdiction and powers between the federal center and the constituent entities of the Russian Federation, etc.) are still specific, and not declarative in nature.

▪ Since constitutional law is a branch of public law, most constitutional legal norms are imperative in nature, i.e. they represent rules and regulations that do not allow any other options for interpretation or behavior, for example: “the bearer of sovereignty and the only source of power in the Russian The Federation is its multinational people" (Part 1, Article 3 of the Constitution of the Russian Federation), "laws are subject to official publication..." (Part 3, Article 15), "No one can be convicted again for the same crime" ( Part 1, Article 50), “the same person cannot hold the position of President of the Russian Federation for more than two terms in a row” (Part 3, Article 81), “Before the newly elected President of the Russian Federation, the Government of the Russian Federation resigns its powers” ​​(Article 116 ) etc. At the same time, constitutional law also contains some positive (less rigid, giving the relevant subject the opportunity to choose) norms, for example: “The Government of the Russian Federation may submit a resignation, which is accepted or rejected by the President of the Russian Federation” (Part. 1 tbsp. 117 of the Constitution of the Russian Federation), “if the State Duma, within three months, repeatedly expresses no confidence in the Government of the Russian Federation, the President of the Russian Federation announces the resignation of the Government or dissolves the State Duma” (Part 3 of Article 117), “The Constitutional Assembly either confirms the immutability of the Constitution of the Russian Federation, or develops a draft of a new Constitution of the Russian Federation, which is adopted by the Constitutional Assembly... or submitted to a popular vote..." (Part 3 of Article 135), etc.

▪ Constitutional legal norms often have a truncated structure; most norms of constitutional law are not characterized by the presence of sanctions (often the norm consists only of a disposition): “The President of the Russian Federation has immunity” (Article 91 of the Constitution of the Russian Federation), “The State Duma is elected for a term of four years "(Part 1 of Article 96), "Local self-government is exercised by citizens through a referendum, elections, other forms of direct expression of will, through elected and other local government bodies" (Part 2 of Article 130), etc. At the same time, some constitutional -legal norms also contain sanctions - unfavorable consequences for subjects of constitutional legal relations who do not comply with the relevant regulations (rules on the removal from office of the President of the Russian Federation or the head of a region, on the dissolution of the legislative body of a subject of the Russian Federation, on the recall of a deputy of a representative body of power, etc.).

▪ Constitutional legal norms (primarily the norms of the Constitution of the Russian Federation) have a constituent character, including for other branches of Russian law. It is on the basis of constitutional and legal norms that the developed sectoral legislation of the Russian Federation has been formed; constitutional provisions are the source of almost all branches of the national legal system. Thus, the civil legislation of Russia is based on constitutional norms on diversity and equal protection of all forms of property, freedom of economic activity, unity of economic space, etc. (Articles 8, 34, 35 of the Constitution of the Russian Federation); labor legislation develops the norms of the Constitution of the Russian Federation on social statehood (Article 7), on freedom of labor and the right to rest (Article 37), etc.; land legislation cannot fail to take into account the requirements of the Constitution of the Russian Federation on the possibility of land and other natural resources being in private ownership, on the special legal regime of these objects of legal relations (Articles 9, 36, 42, 58); procedural legislation is based on the constitutional principles of justice and the functioning of the judiciary (Articles 46-54, Chapter 7 of the Constitution of the Russian Federation), etc.

It is possible to single out some features of constitutional and legal relations (due mainly to the specifics of the subject, method of constitutional and legal regulation and constitutional and legal norms).

▪ Constitutional legal relations are basic social relations in those areas that fall under the object of constitutional legal regulation (specificity of the object of legal relations), accordingly, the content of constitutional legal relations consists only of the fundamental (without detail) rights and obligations of the subjects of these relations in the field of legal regulation of the status of an individual, organization of the state and the functioning of public authority.

▪ The specificity of the subject composition includes the fact that the subject of only constitutional legal relations can be the people (namely the people, and not the population of a certain territory, a certain group of citizens, etc.), in particular, when participating in a referendum, in general elections, in lawful acts of disobedience the existing illegal, anti-constitutional regime.

▪ Along with the traditional grounds for the emergence, change and termination of legal relations - events (birth of a person, reaching the age of active and passive voting rights, death of the head of state or a deputy of a representative body, etc.) and actions (calling elections, adoption of a law, dissolution of the State Duma, publication of an unconstitutional act, etc.), constitutional legal relations can also give rise to legal facts - states (for example, the state of citizenship of the Russian Federation, the state of a subject within the Russian Federation).

▪ A special mechanism for implementing constitutional legal relations. Since constitutional legal norms are not characterized by the presence of sanctions, the implementation of constitutional legal regulations, rights and obligations of subjects of constitutional legal relations is ensured mainly through the norms of other branches of law (criminal, administrative, labor, civil, housing, procedural, etc.).

Topic 2. Constitutional development of Russia

The phenomenon of constitutionalism occupies a priority place among the criteria for "measuring" social progress. The formation of constitutionalism is the largest event in the world history of civilization, associated with the era of the collapse of the feudal world order and the revolutionary replacement of absolutist regimes by republican ones. From the end of the XVIII century. the ideas of constitutionalism are gaining increasing influence on the world constitutional process.

Constitutionalism is a comprehensive category, but it is also possible to single out country-specific aspects that carry the specifics of the constitutional and legal development of a particular country (group of countries). It is in this aspect that one can speak of Russian (French, German, American, etc.) constitutionalism.

Although constitutionalism in Russia arose later than in other states (Russia remained within the framework of an absolutely autocratic regime much longer than other countries), it has passed a fairly long path of development, characterized by contradictions, stages of formation, decline, revival of fundamental ideas and principles.

The constitutional development of the state should not be associated only with the adoption and change of formal constitutions; it is necessary to analyze and take into account the formation (affirmation) of constitutional ideas and principles, the adoption of acts of a constitutional nature by the highest bodies of state power, etc. Based on this, in the history of Russian constitutionalism we can distinguish three periods:

1) pre-Soviet (before October 1917);

2) Soviet (from October 1917 to the second half of the 1980s);

3) post-Soviet (modern).

These periods, being sufficiently long and heterogeneous, are divided into a number of stages, respectively.

2.1. Ideas of constitutionalism in Russia until October 1917

The autocracy, in its essence, denied constitutionalism as the bondage of state power by law. Those social relations that today are called constitutional and legal - in the sphere of organization and functioning of state power, the position of certain social groups of the population, the duties of subjects, etc. - since the time of Kievan Rus were regulated by the letters of princes, their treaties, resolutions of zemstvo councils, imperial decrees and etc.

The first constitutional ideas in Russia appeared in the XNUMXth century. These are, first of all, the ideas of noble (feudal-serf) constitutionalism: “conditions” for the future Empress Anna Ioannovna, the ideas of N. I. Panin (together with D. I. Fonvizin, he even developed a draft constitution), A. R. Vorontsov and others All projects, ideas of this period should not be regarded as a call for the establishment of a constitutional monarchy in Russia - the class essence of the state remained feudal, with the monarch retaining a central place in the political system. However, these ideas contained certain progressive moments: attempts to regulate political relations among the ruling class, institutionalize public opinion, increase its role in the life of the country, etc.

In the second half of the XVIII century. in Russia, a new trend of socio-political thought arose - enlightenment. Its representatives (S. E. Desnitsky, D. I. Fonvizin, N. I. Novikov, A. N. Radishchev and others) paid considerable attention to questions of constitutionalism. In general, their constitutional ideas and projects did not have an estate-noble coloring, the Russian enlighteners advocated limiting the power of the monarch and assigned a central place in the mechanism of state power to popular representation.

In the XNUMXth century The development of constitutional thought in Russia went in two directions:

1) monarchical (government) - M. M. Speransky, N. N. Novoseltsev, P. A. Vyazemsky, P. I. Shuvalov, P. A. Valuev and others;

2) noble-liberal and bourgeois-liberal (stage of revolutionary-noble constitutionalism) - A. V. Berdyaev, P. V. Dolgorukov, P. I. Pestel, N. M. Muravyov, A. I. Herzen, N. P Ogarev, N. G. Chernyshevsky and others.

The idea of ​​a constitutional monarchy prevailed at this stage, however, individual representatives of the liberal trend were already putting forward the idea of ​​republican government (P. I. Pestel in Russkaya Pravda); in one of the variants of the constitutional project of N. M. Muravyov, a federation was proposed as a form of territorial structure for Russia.

During the period under review, written constitutional acts also appeared, developed both for the constituent parts of the Russian Empire and for other states: in 1804, Alexander I approved the draft Constitution for the Ionian Islands, in 1809, a number of imperial manifestos actually created an uncodified constitution of Finland, in 1815 Alexander I signed the Constitution of the Kingdom of Poland (the first valid constitutional act on the territory of the Russian Empire), in 1879 the Tarnovo Constitution of Bulgaria was developed (which was in force until 1947). The supreme power comes to the conviction of the need for a constitutional order in Russia. In 1818, the first Russian constitution was developed - the "State Statutory Charter of the Russian Empire" ("Charter of the State System"). In 1881, Russia could have received the first constitution (“Loris-Melikovskaya”), but the assassination of Alexander II (the reformer tsar who was ready to grant a constitution), the scope of terror, the growth of the revolutionary movement and the situation of retaliatory repressions did not allow this to happen.

Thus, the formation of the ideas of constitutionalism in the modern sense in Russia began in the first quarter of the XNUMXth century, and by the beginning of the XNUMXth century. in Russia there were already enough constitutional and reconstructive plans.

The starting point for the practical constitutionalization and parliamentarization of the country was the Supreme Manifesto of Nicholas II of October 17, 1905 "On the improvement of the state order" and the Code of Basic State Laws of 1906 ("Establishment of the State Duma", "Establishment of the State Council", "Rules on the procedure for considering state list of income and expenses ", etc.). In Russia, for the first time, inalienable civil rights were proclaimed (inviolability of the person, freedom of conscience, speech, assembly, unions, etc.), voting rights were introduced, the State Duma and the State Council were established and formed. These bodies did not become a true parliament, but four convocations of the State Duma, with a total term of legislature of 20 years, is certainly a significant stage in the development of Russian parliamentarism. Among the scientific community of that time, there was an opinion that these acts established a constitutional system in Russia, which significantly limited the foundations of autocracy.

In February 1917, after Nicholas II and his brother Mikhail abdicated, the monarchy in Russia ceased to exist. The State Duma formed the Provisional Government, which proclaimed Russia a republic. The further fate of the state was to be determined by the Constituent Assembly. It was a fairly representative, legitimate body, elections were held, it was convened and started to work, but in October 1917, after the Constituent Assembly refused to approve the first decrees of the Soviet government, it was dissolved by the Bolsheviks. The brief stage of Russian parliamentarism was brought to an end.

Thus, to talk about the consistent perception by Russia at the beginning of the XNUMXth century. ideas and principles of constitutionalism are impossible, however, it is impossible not to note the progressive shifts in the way of Russian statehood, the impetus for the formation of the principles of constitutionalism was given.

2.2. Constitutional (state) law of Russia in the Soviet (socialist) period

The period under consideration is distinguished by the fact that in Russia a constitution appeared in its own, formal-legal sense of the word. However, in terms of content, Soviet constitutions did not agree with the generally recognized postulates of traditional ("Western") constitutionalism (equality of citizens, popular representation and parliamentarism, political pluralism and multi-party system, separation of power, priority of human rights, etc.); Soviet state law was based on ideas about class interests, the subordination of personal interests to public (state), institutional unity of state power, ideological monism and the dominance of one political force, etc.

The beginning of the formation of totalitarian state law was laid by the first acts (decrees) of the first Soviet government: decrees on power, on the establishment of the Council of People's Commissars, on peace, on land, on the nationalization of banks, on workers' control in enterprises, on the prohibition of counter-revolutionary parties, the Declaration of the Rights of the Worker and exploited people, etc.

On July 10, 1918, the V All-Russian Congress of Soviets adopted the first Constitution of the RSFSR, proclaiming Russia a republic of councils of workers', peasants' and soldiers' deputies (as opposed to a parliamentary republic), establishing the unity of legislative and executive-control activities (instead of the division of power), the dictatorship of the proletariat and merciless suppression exploiters (political and certain socio-economic rights were granted only to workers), the federal structure of the state based on the national-territorial principle, the introduction of universal labor service, proclaiming the victory of socialism in all countries as the main goal.

In 1922, Russia actually lost state sovereignty, becoming part of the Union of Soviet Socialist Republics (although de jure it retained the right to secede from the Union). Since that time, the constitutional development of Russia has been the development of it as a republic within the USSR, and all subsequent Russian constitutions were a cast from the union constitutions. The second Constitution of the RSFSR adopted in 1925 (following the Constitution of the USSR of 1924) legally fixed the new status of Russia. In terms of content, this Constitution differed little from the previous one, although it reflected some softening of the political and economic situation after the end of the Civil War.

The Third Constitution of the RSFSR (adopted in 1937 on the basis of the Constitution of the USSR of 1936) proclaimed the complete victory of socialism, for the first time legally (at the level of the fundamental law of the state) consolidated the leading role of the Communist Party, somewhat softened the wording regarding ensuring the equality of citizens.

In 1978, after the adoption of the Constitution of the USSR in 1977, the fourth Constitution of the RSFSR (the last Russian Constitution of the Soviet period) was adopted. The Constitution consolidates the building of developed socialism in the country, the development of the dictatorship of the proletariat into a nationwide state power, and expands the wording of the rights and freedoms of man and citizen.

All Soviet constitutions did not correspond to the traditional understanding of constitutionalism. In addition, they were largely fictitious: even attractive constitutional norms (on personal and political rights and freedoms, democracy, federalism, etc.) were not respected in practice, there was a totalitarian (later - authoritarian) regime in the country with virtually undivided rule by the party -state nomenclature. However, the science of constitutional (state) law during this period was not in complete stagnation, which predetermined a fairly quick transition to a new constitutional model of Russian statehood.

2.3. The Formation of Modern Constitutionalism in Russia

The formation of genuine constitutionalism in Russia should not be associated solely with the adoption of a new Constitution in 1993; this process began in the second half of the 1980s. - within the framework of the last Soviet Constitution of the RSFSR of 1978

After 1985, when the so-called "perestroika" of all spheres of public life began in the USSR, the Constitution of 1978 was changed many times, as a result of which it acquired fundamentally different features. Many of those constitutional provisions were adopted by the current Constitution of the Russian Federation. It was on the basis of the changed Constitution and the provisions of laws adopted in its development that the transition from an authoritarian to a democratic regime began.

This manifested itself, in particular, in the following:

▪ in Russia, at the constitutional level, the rejection of the socialist model of development, the monopoly of the Communist Party, the recognition of political pluralism and a multi-party system, the division of power, private property and freedom of enterprise were enshrined;

▪ changes occurred in the system of state power: the electoral system changed fundamentally, the post of President of the Russian Federation, a two-level representative and legislative body (the Congress of People's Deputies of the Russian Federation and the permanent Supreme Council of the Russian Federation) and the Constitutional Court of the Russian Federation were established;

▪ intra-federal relations have changed: all former autonomous republics and most autonomous regions acquired the status of republics within the Russian Federation, the status of other subjects of the federation increased, in 1992 the Federal Treaty was concluded, which became an integral part of the Constitution;

▪ the rights of local self-government were significantly expanded;

▪ On November 22, 1991, the Declaration of Rights and Freedoms of Man and Citizen was adopted, later incorporated into the Constitution;

▪ after the cessation of the existence of the USSR in 1991, norms limiting the state sovereignty of Russia were excluded from the Constitution of the Russian Federation, and its constitutional development since that time has continued as the development of a sovereign state (the Declaration of State Sovereignty was adopted by the Congress of People's Deputies of the RSFSR on June 12, 1989, but it provided for the development of Russia as part of the renewed USSR);

▪ state symbols have changed.

Since the contradictions in the Constitution of the Russian Federation of 1978, despite the introduction of numerous amendments to it, persisted (primarily in the norms regulating the system of state power), the question arose of adopting a new Constitution of Russia.

In 1990, the First Congress of People's Deputies of the RSFSR decided to develop a new Constitution, and a Constitutional Commission was established to prepare a draft of the Basic Law. At that time, a lot of alternative projects were being developed, and the Constitutional Conference was created to summarize all the proposals.

A referendum on the draft of the new Constitution of the Russian Federation and elections of deputies of the State Duma and the Federation Council were scheduled for December 12, 1993 (the legal basis for holding the said referendum and elections were the relevant provisions approved by decrees of the President of the Russian Federation, since at that time the parliament did not function in the country and all full political power was temporarily concentrated in the hands of the head of state.In accordance with Decree of the President of the Russian Federation of September 21.09.1993, 1400 No. 1978 "On a phased constitutional reform", a number of articles of the XNUMX Constitution were suspended, the activities of the Congress of People's Deputies, the Supreme Council of the Russian Federation and lower councils of people's deputies).

On December 12, 1993, for the first time in the history of Russia, a new Constitution was adopted by popular vote (more than 54% of Russian citizens who have the right to participate in the referendum took part in the constitutional referendum, of which more than 58% voted for the adoption of the project put to the vote). It is important to note that an agreed draft of the Basic Law was put to the vote - the Constitutional Council considered and summarized thousands of proposals from various state authorities, political forces, regions, citizens, scientists, domestic and foreign experts. The text of the current Constitution of the Russian Federation is one of the best in the world.

It was with the adoption of the new Constitution of the Russian Federation that a new stage began in the post-Soviet development of Russian constitutionalism; on the basis of the 1993 Constitution, a new legal system and constitutional model of the state are being formed. This stage will be very long, many qualitative norms of the Constitution of the Russian Federation are not yet observed, a significant period is required for society to learn how to live according to the Constitution.

Topic 3. Sources of Russian constitutional law

Sources of constitutional law are external forms of expression of constitutional legal norms. The theory of law names as the main sources of law a normative legal act, legal precedent and legal custom (along with such sources as an agreement (sometimes referred to as a "normative agreement"), legal doctrine, party documents (in conditions of one-party systems), religious norms, etc. .).

It can be argued that all the main sources of law take place in the Russian legal system. Since the Russian Federation belongs to the number of states of the continental (European, Romano-Germanic) legal system, the main source of law (including constitutional) in Russia is the result of the rule-making activities of various government institutions - a normative legal act. In turn, a group of normative legal acts is a very voluminous set of sources, so it can be subject to internal classification. At the same time, the system of normative legal acts is distinguished by a clear hierarchy and correlation in legal force.

The most common division of normative legal acts is their division into laws and by-laws. Law is a collective concept, the legal system of modern Russia knows the following types of laws:

1) the Constitution of the Russian Federation - the Basic Law of the state;

2) federal constitutional laws. This type of laws appeared in Russia only with the adoption of the Constitution of the Russian Federation in 1993. In essence, Russian federal constitutional laws are organic laws, they are adopted only on issues expressly provided for by the Constitution of the Russian Federation, in development of its provisions. The Constitution of the Russian Federation does not always unambiguously determine whether one or more federal constitutional laws must (or can) be adopted in the relevant area of ​​public relations; The Basic Law provides for about two dozen issues on which federal constitutional laws should be adopted. They should regulate important areas of public relations: the country's judicial system, the status of the Constitutional Court of the Russian Federation, arbitration courts and courts of general jurisdiction, the Government of the Russian Federation, the Commissioner for Human Rights in the Russian Federation, military and state of emergency regimes, the procedure for holding a referendum, etc. Federal constitutional laws differ from other laws, not only with greater legal force (federal laws cannot contradict federal constitutional laws - part 3 of article 76 of the Constitution of the Russian Federation), but also with a more complex procedure for their adoption: for the adoption of these laws, approval by a qualified majority of the chambers of the Federal Assembly of the Russian Federation is required (not less than 3/4 of the votes of the total number of members of the Federation Council and at least 2/3 of the votes of the total number of deputies of the State Duma); in relation to the federal constitutional laws adopted by the Parliament, the President of the Russian Federation does not have the right of veto;

3) federal laws. This is the most numerous type of sources of constitutional law. However, the following circumstances must be kept in mind here.

Firstly, in contrast to federal constitutional laws, the sources of constitutional law are not all federal laws adopted in Russia, but only those of them, the content of which falls under the subject of constitutional legal regulation (in particular, regulating issues of citizenship, the status of the head of state, deputy representative body of power, the procedure for the formation of the chambers of parliament, etc.).

Secondly, such laws can be adopted only on subjects of exclusive jurisdiction of the Russian Federation and joint jurisdiction of the Russian Federation and its subjects (Articles 71, 72 of the Constitution of the Russian Federation).

Thirdly, federal laws (as well as the laws of the constituent entities of the Russian Federation) are, as a rule, normative acts, but it is possible to adopt a law and a special, individual, in fact, administrative nature (for example, on the dissolution of the representative body of a municipality, on the transfer to a foreign state of a specific property of cultural value, in accordance with the provisions of the Federal Law of April 15.04.1998, 64 No. XNUMX-FZ "On cultural property transferred to the USSR as a result of World War II and located on the territory of the Russian Federation"). Such federal laws are also constitutional and legal in their content, but they cannot be considered as a source of law, since they do not contain legal norms as such (based on the fact that a legal norm is a generally binding rule of conduct that extends its effect to an indefinite circle of persons) .

Fourthly, all federal laws have the same legal force, however, the federal legislator has the right to establish the priority of individual federal laws (primarily codified acts) over other federal laws in a certain area of ​​public relations (the corresponding legal position was set out by the Constitutional Court of the Russian Federation in the Decree dated June 29.06.2004, 13 No. 7-P in the case of checking the constitutionality of certain provisions of articles 15, 107, 234, 450 and 6 of the Code of Criminal Procedure of the Russian Federation in connection with the request of a group of deputies of the State Duma). With regard to the sphere of constitutional and legal regulation, such a situation takes place, in particular, in the electoral legislation - paragraph 1 of Art. 12.06.2002 of the Federal Law of June 67, XNUMX No. XNUMX-FZ "On the Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of Citizens of the Russian Federation" and establishes the priority of the said Federal Law over other federal laws (it is important to keep in mind that the priority of one federal law established by the legislator over others is not unconditional, but is limited by the framework of a special subject of regulation). Federal laws are adopted according to a simpler (usual) procedure compared to federal constitutional laws;

4) laws on amendments to the Constitution of the Russian Federation. These laws must be singled out as an independent group not only on the basis of the specifics of their content, but also due to a special adoption procedure. General provisions for the adoption of laws on amendments are contained in Art. 136 of the Constitution of the Russian Federation, and the details are in the Federal Law of March 04.03.1998, 33 No. 3-FZ "On the procedure for the adoption and entry into force of amendments to the Constitution of the Russian Federation." By adopting the laws in question, changes can be made not to all chapters of the Basic Law, but only to ch. 8-XNUMX, changing other chapters is possible only in the order of revision, i.e., the adoption of a new Constitution. The procedure for enacting amendment laws is much more complicated than for ordinary federal laws. So far, there has been no practice of adopting laws on amendments to the Constitution in Russia;

5) laws of subjects of the Russian Federation. This type of sources of constitutional law is also relatively new. The Constitution of the Russian Federation of 1993 granted the subjects of the Russian Federation fairly broad powers, including the right to adopt their own laws. The Russian regions very actively use this right, and the number of these regulatory legal acts is extremely large. The place of these laws in the hierarchical system of normative legal acts of the Russian Federation cannot be unequivocally determined; here it is necessary to take into account the scope of legal (legislative) regulation. The fact is that they can be adopted both on subjects of their own jurisdiction of the subjects of the Russian Federation, and on subjects of joint jurisdiction of the Russian Federation and its subjects (Articles 72, 73, part 4 of Article 76 of the Constitution of the Russian Federation), and in the latter case, regional laws must comply with federal (including those adopted later), and in the first case, regional law has priority. The sources of constitutional law are not all regional laws, but only those regulating social relations that fall under the subject of constitutional and legal regulation.

A large group of normative legal acts - the sources of constitutional law - are by-laws. At the same time, not all of them are sources of constitutional law, but only those that regulate social relations that are the subject of the leading branch of law. These include:

1) decrees of the President of the Russian Federation. It should be clarified that the decrees of the head of state, which are part of the sphere of constitutional and legal relations, but are individual, and not normative in nature (for example, on granting citizenship, on awarding state awards, on pardon, on dismissal of the head of the region, etc. ), as well as the orders of the President of the Russian Federation, which are of a normative nature are extremely rare, cannot be considered as sources of law, since they do not contain generally binding rules of conduct. Examples of sources of law under consideration, in particular, are Decrees of the President of the Russian Federation of December 28.12.2001, 1500 No. 14.11.2001 "On commissions for pardons in the territories of the constituent entities of the Russian Federation", of November 1325, 13.05.2000 No. 849 "On approval of the Regulations on the procedure for considering issues of citizenship of the Russian Federation", dated May 21.04.2000, 706 No. XNUMX "On the Plenipotentiary Representative of the President of the Russian Federation in the Federal District", dated April XNUMX, XNUMX No. XNUMX "On the Approval of the Military Doctrine of the Russian Federation", on the introduction of a state of emergency in certain areas, etc.;

2) Decrees of the Government of the Russian Federation. These acts must not contradict not only the Constitution of the Russian Federation and federal laws, but also the decrees of the President of the Russian Federation, who has the right to cancel government decrees if they contradict legal acts of greater legal force;

3) departmental acts (orders, regulations, instructions, rules) issued by executive authorities within their competence. These acts should not contradict, among other things, the resolutions of the Government of the Russian Federation. Governmental and departmental acts (Ministry of Internal Affairs of the Russian Federation, Ministry of Justice of the Russian Federation, etc.) may, in particular, approve the rules for considering issues of citizenship of the Russian Federation, registration of citizens, registration of political parties and other public associations, features of the implementation of certain constitutional rights (electoral , for freedom of movement, for work and leisure, for freedom of correspondence, etc.) by citizens serving criminal sentences, etc.;

4) acts of the chambers of the Federal Assembly (except for laws) that have a normative character. Here, first of all, we mean the regulations of the State Duma and the Federation Council, which are important in regulating the procedure for exercising the powers of the chambers of parliament (sometimes these acts are singled out as an independent group of sources of constitutional law).

5) other (except for laws) regulatory legal acts of the constituent entities of the Russian Federation (primarily acts of the executive authorities of the regions: presidents of the republics, governors and heads of administrations of other constituent entities of the Russian Federation, regional governments, administrations, their departments, departments, departments, etc.), as well as acts of local governments adopted within their competence (in particular, on issues of organizing local public authorities).

The assignment of other forms of law to the sources of the constitutional law of Russia is indisputable and debatable.

Judicial precedent is the main source of law in countries of the Anglo-Saxon legal system. In the countries of the continental legal system, which includes Russia, judicial precedent is not considered as a source of law. However, the following must be kept in mind here. As a general rule, decisions of courts of general jurisdiction and arbitration courts in Russia are not a source of law. But relatively recently, such judicial bodies as the Constitutional Court of the Russian Federation and constitutional (statutory) courts of the constituent entities of the Russian Federation appeared in the judicial system of the Russian Federation. The legal nature of the decisions of these judicial bodies is fundamentally different: they are essentially normative and precedent in nature, obligatory not only for persons participating in the case (i.e., they apply to an indefinite circle of persons), decisions of constitutional justice bodies are final, they cannot be canceled in in the order of appeal, cassation, supervision, overcome by re-adopting an act declared unconstitutional. Consequently, decisions of judicial bodies of constitutional justice in the Russian Federation should be considered as sources of constitutional law.

It is possible to speak about legal custom as a source of the constitutional law of the Russian Federation with a significant degree of conventionality. The fact is that customs, before becoming the norm, must be fixed in the rules of conduct for a sufficiently long time and be sanctioned by the state (at least in the form of tacit approval), while the period of truly constitutional development in Russia is still short. At the same time, we can be cautious about the appearance in the Russian doctrine and practice of certain constitutional customs (primarily in the sphere of functioning of public power), for example: the President of the Russian Federation nominates the candidacy of the Chairman of the Government of the Russian Federation to the State Duma only after preliminary consultations with the leaders of parliamentary factions and deputy groups distribution of leadership positions in the State Duma and parliamentary committees between factions in proportion to the mandates received, assigning groups of bills, depending on the subject of regulation, to certain parliamentary committees and commissions, exercising part of the constitutional powers of the head of state (pardoning, awarding state awards, forming the judiciary, etc.). ) only in agreement with the regions, etc.

The treaty can be considered as a source of constitutional law. At the same time, if international treaties existed in the domestic legal system for a long time, then intra-federal (intrastate) treaties are a relatively new phenomenon for Russian reality. Agreements between state authorities of the Russian Federation and state authorities of its subjects are provided for by the federal Constitution (part 3 of article 11, parts 2, 3 of article 78).

The concept of a "self-executing treaty" has not been adopted in Russia: both international treaties and treaties concluded between federal and regional government bodies do not enter into force automatically after signing. In accordance with Federal Laws No. 15.07.95-FZ of July 101, 06.10.1999 "On International Treaties of the Russian Federation" and No. 184-FZ of October XNUMX, XNUMX "On the General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation", they are subject to ratification (approval) through the adoption of a federal law, which brings these agreements closer, in fact, to regulatory legal acts.

Some constitutionalists (M. V. Baglai, A. E. Kozlov and others) consider natural law as a set of natural, inalienable human rights and freedoms as an independent source of constitutional law (all the sources considered above are combined into positive law with this approach). Such an approach certainly has a right to exist. However, any right must be realizable and protected, and the implementation and, especially, the protection of rights and freedoms are possible with the positive consolidation of these rights and freedoms (in a normative act, a court decision, an agreement, etc.). Practically all generally recognized (natural) human rights and freedoms in the Russian Federation are fixed positively, at the level of the Basic Law, including thanks to the wording of Part 4 of Art. 15 and Art. 55 of the Constitution of the Russian Federation.

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.

Topic 5. The Constitutional Court of the Russian Federation is the main body of legal protection of the Constitution of the Russian Federation

The Russian Federation has chosen the Austrian (European) model of constitutional control, according to which the leading place in the system of measures for the legal protection of the Constitution belongs to a specialized judicial body - the Constitutional Court of the Russian Federation (until 1990, the model of parliamentary (non-judicial) constitutional control was fixed at the constitutional level in Russia) .

5.1. The procedure for the formation and organization of the Constitutional Court of the Russian Federation

The status of the Constitutional Court of the Russian Federation is determined in Art. 125 of the Constitution of the Russian Federation, the main act in this matter is the Federal Constitutional Law of July 21.07.1994, 1 No. 1993-FKZ "On the Constitutional Court of the Russian Federation". This is the first federal constitutional law in the history of Russia, adopted on the basis of the Constitution of the Russian Federation of 1990. The law is a codified act in the field of constitutional legal proceedings, it contains both substantive and procedural norms. The status of the Constitutional Court, enshrined in the current legislation, has changed significantly in many respects compared to the status of the Constitutional Court of the Russian Federation, established in XNUMX.

The Constitutional Court of the Russian Federation consists of 19 judges appointed by the Federation Council on the proposal of the President of the Russian Federation. Proposals on candidates for the positions of judges of the Constitutional Court may be submitted to the President of the Russian Federation by members of the Federation Council, deputies of the State Duma, legislative (representative) bodies of state power of the constituent entities of the Russian Federation, higher judicial bodies (the Supreme Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation, the Constitutional Court of the Russian Federation itself), federal legal departments (in particular, the Ministry of Justice of the Russian Federation), all-Russian legal communities, legal scientific and educational institutions (in the current composition of the Constitutional Court of the Russian Federation, the majority of judges are well-known legal scholars).

To be appointed to the position of a judge of the Constitutional Court of the Russian Federation, a candidate must meet the following requirements: citizenship of the Russian Federation; age limit - at least 40 years; higher legal education and work experience in the legal profession for at least 15 years; impeccable reputation; recognized high qualification in the field of law.

A judge of the Constitutional Court of the Russian Federation may be appointed to office once for a period of 15 years. The age limit for a judge is 70 years. A judge of the Constitutional Court of the Russian Federation has a rather high status, many components of which are strengthened in comparison with the general provisions of the status of a judge in the Russian Federation. Thus, for judges of the Constitutional Court of the Russian Federation, a more complex procedure for bringing to legal responsibility, a different set of grounds and the procedure for early termination of powers, higher material and social guarantees, more stringent requirements for the content of the principle of incompatibility, etc., have been established.

Structure and organization of the activities of the Constitutional Court of the Russian Federation. The Constitutional Court of the Russian Federation consists of two chambers consisting of ten and nine judges, respectively, while the decision of any of the chambers is the decision of the Constitutional Court. A complex structure of specialized judicial bodies of constitutional control takes place in most states, where the consideration of constitutional complaints is attributed to the powers of these bodies. The personal composition of the chambers is determined not by the Federation Council when appointing judges, but by drawing lots, while the composition of the chambers is not unchanged - it must change at least every three years. To manage the activities of the Constitutional Court, the judges themselves from their composition at the plenary session for a period of three years elect the Chairman, Deputy Chairman and Judge-Secretary of the Constitutional Court (there are no restrictions on the number of re-elections within the general term of office of a judge for these officials). The powers of these officials of the Constitutional Court of the Russian Federation can be described as organizational and managerial: in the sessions of the Court, when considering specific cases, they have the same procedural rights as other judges. There are no permanent chairmen in the chambers of the Constitutional Court of the Russian Federation - the duties of presiding at the meetings of the chamber are performed by the judges who are members of the corresponding chamber, in turn. The Chairman and Deputy Chairman of the Constitutional Court of the Russian Federation cannot be members of the same chamber.

5.2. Competence of the Constitutional Court of the Russian Federation

The main thing in clarifying the status of the Constitutional Court of the Russian Federation is the question of its competence (jurisdiction). Disclosing this issue, one should not be limited only to the provisions of Art. 125 of the Constitution of the Russian Federation, it is also necessary to proceed from the provisions of Art. 3 of the Law "On the Constitutional Court of the Russian Federation", other federal constitutional laws, as well as legal positions contained in the decisions of the Constitutional Court itself. The competence of the Constitutional Court of the Russian Federation can be divided into the following groups of powers:

1) verification of the constitutionality of legal acts in the order of abstract constitutional control (normative control);

2) verification of the constitutionality of laws in the order of specific constitutional control;

3) resolution of disputes about competence;

4) official interpretation of the Constitution of the Russian Federation;

5) giving an opinion on compliance with the established procedure for charging the President of the Russian Federation with high treason or committing another serious crime;

6) other powers.

In addition, in accordance with Part 1 of Art. 104 of the Constitution of the Russian Federation, the Constitutional Court of the Russian Federation has the right to initiate legislation on issues within its jurisdiction.

In the first group of powers, the question of the subject and limits of constitutional control is important. The Constitutional Court verifies the constitutionality of the following legal acts:

1. Acts of the federal level - federal laws, regulations of the President of the Russian Federation, the Federation Council, the State Duma and the Government of the Russian Federation. It is necessary to pay attention to the following. Firstly, the term "federal laws" should be interpreted broadly, meaning by it also federal constitutional laws (in the practice of the Constitutional Court of the Russian Federation there are cases related to the consideration of the provisions of the Federal constitutional laws of December 31.12.1996, 1 No. 27.09.2002-FKZ "On the judicial system of the Russian Federation ", dated 5 No. XNUMX-FKZ "On Amending and Adding to the Federal Constitutional Law" On the Referendum of the Russian Federation "", etc.). Secondly, the Constitutional Court of the Russian Federation considers only normative acts of the President of the Russian Federation, the Government of the Russian Federation and Acts of a non-normative nature (individual legal acts) are not subject to constitutional control in the Constitutional Court of the Russian Federation.

2. Acts of the regional level - constitutions, charters, laws and other (including by-laws) regulatory legal acts of the subjects of the Russian Federation. Here, the principle is the provision that not all of these regional normative legal acts are subject to constitutional control in the Constitutional Court of the Russian Federation, but only those issued on the subjects of the jurisdiction of the Russian Federation and the joint jurisdiction of the Russian Federation and its subjects. Consequently, the acts issued by the state authorities of the constituent entities of the Russian Federation on subjects of their own jurisdiction, the Constitutional Court of the Russian Federation is not entitled to consider. In addition, despite the absence of a direct order, one should proceed from the fact that only acts issued by the highest state authorities of the constituent entities of the Russian Federation are subject to control in the Constitutional Court of the Russian Federation.

3. Intra-federative agreements, i.e. agreements between federal and regional government bodies, as well as between regional government bodies. We are talking here about contracts of a public law nature, related primarily to the delimitation of powers (for example, disputes arising from contracts of a property nature are under the jurisdiction of arbitration courts). So far, there have been no such cases in the practice of the Constitutional Court of the Russian Federation.

4. International treaties of the Russian Federation that have not entered into force. The object of constitutional control is not all international treaties of the Russian Federation, but only those subject to ratification or other approval by federal government bodies (we are talking primarily about interstate treaties).

Concluding the characterization of the first group of powers of the Constitutional Court of the Russian Federation, it should be noted that, firstly, all these acts are checked by the Constitutional Court of the Russian Federation exclusively for compliance with the Constitution of the Russian Federation - checking these acts for compliance, in particular with federal constitutional laws and federal laws, falls under the jurisdiction of general and arbitration courts. Secondly, the verification of the constitutionality of these acts can be carried out in the order of abstract constitutional control, that is, without regard to the application of the challenged act in a particular case.

The basis for the verification by the Constitutional Court of the Russian Federation of legal acts in the order of abstract constitutional review is a request, the right to which is held by: the President of the Russian Federation; Council of the Federation; The State Duma; a group of 1/5 members of the Federation Council or deputies of the State Duma; Government of the Russian Federation; the Supreme Court of the Russian Federation; Supreme Arbitration Court of the Russian Federation; legislative and executive authorities of the constituent entities of the Russian Federation. In addition, in Resolution No. 18.07.2003-P dated July 13, XNUMX, on the case of checking the constitutionality of certain provisions of the Civil Procedure Code of the RSFSR, the Civil Procedure Code of the Russian Federation and the Federal Law "On the Prosecutor's Office of the Russian Federation", the Constitutional Court of the Russian Federation concluded that it was possible to appeal to the Constitutional Court with a request to check the compliance of the Constitution of the Russian Federation with the constitutions and charters of the constituent entities of the Russian Federation in the manner of abstract normative control by the Prosecutor General of the Russian Federation.

In contrast to the abstract, specific constitutional control is associated with the verification by the Constitutional Court of the contested act only in connection with its application in a specific case (as well as if the contested act, in the opinion of the applicant, is subject to application in a specific case). The Constitution of the Russian Federation and the Law "On the Constitutional Court of the Russian Federation" name only the law (both federal and regional levels) as the subject of such control. However, in the Resolution of the Constitutional Court of the Russian Federation of January 27.01.2004, 1 No. XNUMX-P on the case of checking the constitutionality of certain provisions of the Civil Procedure Code of the Russian Federation, a legal position is set out, according to which, if there is a direct normative connection between the decree of the Government of the Russian Federation and the federal law and if these acts are applied or are subject to application in a specific case in inseparable unity, then the Constitutional Court may recognize as admissible both the request of the court in connection with the specific case considered by it, and the citizen’s complaint about the violation of constitutional rights and freedoms, in which the constitutionality of both the federal law and the normative act of the Government of the Russian Federation.

The basis for consideration by the Constitutional Court of the Russian Federation of a case in the manner of a specific constitutional control may be a constitutional complaint or a court request. A complaint can be both individual and collective, i.e. filed by a group of citizens, associations of citizens (including legal entities - commercial and non-profit organizations). In addition, other bodies and persons to whom federal legislation grants the right to apply to the court in the interests of citizens (in particular, prosecution authorities) may file a complaint with the Constitutional Court of the Russian Federation. A prerequisite for the admissibility of a complaint is that the challenged act must affect constitutional rights and freedoms, i.e. rights and freedoms provided directly in the Constitution of the Russian Federation, and not rights provided exclusively by sectoral or corporate legislation. A court (judge) of any level of the system of general and arbitration courts can apply to the Constitutional Court of the Russian Federation in this aspect. At the same time, an appeal to the Constitutional Court of the Russian Federation (with a suspension of proceedings on the case) in case of doubt about the constitutionality of the law applied or to be applied in a particular case is not a right, but an obligation of the relevant court.

Disclosing the authority of the Constitutional Court of the Russian Federation to resolve disputes about competence, it is necessary to keep in mind the following. In this case, the subjects of appeal to the Constitutional Court of the Russian Federation are only public authorities: it does not resolve disputes between citizens, between legal entities, between a citizen and an organization, between an organization and the state, etc. The right to apply to the Constitutional Court of the Russian Federation to resolve a dispute about competencies are not vested in all government institutions, but only public authorities at the federal and regional levels. Local self-government bodies do not have access to the Constitutional Court. Disputes about competence are possible both in the "horizontal aspect", i.e. between state authorities of the same level - between federal state authorities (for example, between the President of the Russian Federation and the Federation Council, between the Government of the Russian Federation and the State Duma, etc.) or between the highest state bodies of the subjects of the Russian Federation, including one subject of the Russian Federation (for example, between the mayor of Moscow and the governor of the Moscow region, between the mayor of Moscow and the Moscow City Duma, etc.), and in the "vertical aspect" - between state bodies different levels (for example, between the Government of the Russian Federation and the Legislative Assembly of the Krasnoyarsk Territory, between the President of the Russian Federation and the Governor of the Sverdlovsk Region, etc.). The subject of appeal in such disputes can only be the resolution of the contradiction in the positions of the parties on the belonging (violation, non-exercise) of the constitutional authority to one or another state body. The Constitutional Court of the Russian Federation does not resolve economic disputes between state authorities, disputes about the jurisdiction or jurisdiction of cases to courts, etc. The form of applying to the Constitutional Court of the Russian Federation for resolving a dispute on competence is a petition from the relevant federal or regional state authority. In addition, the President of the Russian Federation may apply to the Constitutional Court with such a petition in the manner of implementing the provisions of Part 1 of Art. 85 of the Constitution of the Russian Federation, the powers to carry out conciliation procedures to resolve disagreements between the relevant state authorities.

The Constitutional Court of the Russian Federation is the only body in the country endowed with the authority to officially interpret the Constitution of the Russian Federation (an authentic interpretation of the Basic Law is practically impossible due to the fact that the Constitution of the Russian Federation was adopted by the citizens of Russia by popular vote). The following persons have the right to appeal to the Constitutional Court with a request for interpretation: the President of the Russian Federation; Council of the Federation; The State Duma; Government of the Russian Federation; legislative bodies of the constituent entities of the Russian Federation. The interpretation of the Constitution of the Russian Federation, given by the Constitutional Court of the Russian Federation, is mandatory for all state bodies, local governments, legal entities and individuals. At the same time, we are not talking about a casual interpretation of the Constitution (i.e., interpretation of the Basic Law in connection with the exercise by the Constitutional Court of the Russian Federation of its other powers), but about the interpretation of the Constitution as an independent authority of the Constitutional Court, implemented on the basis of a special request for interpretation.

By participating in the provisions of Art. 93 of the Constitution of the Russian Federation on the procedure for removing the President of the Russian Federation from office, the Constitutional Court of the Russian Federation gives an opinion on compliance with the established procedure for accusing the President of the Russian Federation of high treason or committing another serious crime. The Federation Council addresses the request to the Constitutional Court of the Russian Federation after the relevant accusation has been brought by the State Duma, and the Supreme Court of the Russian Federation has issued a conclusion on the presence of signs of the corresponding crime in the actions of the President of the Russian Federation. If the Constitutional Court of the Russian Federation makes a decision on non-compliance with the established procedure for bringing charges, further consideration of the charges is terminated.

Other powers of the Constitutional Court of the Russian Federation include those provided for by federal constitutional laws and intra-federative agreements. As examples here, one can cite the authority of the Constitutional Court of the Russian Federation to verify the constitutionality of documents and materials submitted in connection with the implementation of the initiative to hold a federal referendum, provided for by the Federal Constitutional Law of June 28.06.2004, 5 No. 17.12.2001 "On the Referendum of the Russian Federation"; the authority to exercise mandatory constitutional control of an international treaty of the Russian Federation with a foreign state on the admission to the Russian Federation of a new subject, provided for by the Federal constitutional law of December 6, XNUMX No. XNUMX-FKZ "On the procedure for admission to the Russian Federation and the formation of a new subject of the Russian Federation in its composition" .

When exercising any authority, the Constitutional Court of the Russian Federation decides exclusively on issues of law and refrains from establishing and investigating factual circumstances in all cases when this falls within the competence of other courts or other bodies.

Not all of the considered powers of the Constitutional Court of the Russian Federation can be implemented in the sessions of the chambers. Exclusively in plenary sessions, the constitutionality of the fundamental laws of the constituent entities of the Russian Federation is checked, an interpretation of the Constitution of the Russian Federation and a conclusion on compliance with the established procedure for accusing the President of the Russian Federation of treason or committing another grave crime are given. In addition, plenary sessions receive messages from the Constitutional Court of the Russian Federation, decide on the issue of legislative initiative and organizational issues (election of the chairman, deputy chairman and secretary, formation of the personal composition of the chambers, adoption of regulations, etc.).

The Constitutional Court of the Russian Federation mainly carries out subsequent constitutional control, i.e., it checks legal acts that have already entered into force. However, provision is also made for the implementation of preliminary constitutional control, in particular, the verification of the constitutionality of international treaties that have not entered into force, and the initiative to hold a referendum. At the same time, the constitutional control exercised by the Constitutional Court of the Russian Federation is predominantly initiative (optional). The reason for the consideration of the case is the corresponding appeal to the Constitutional Court with a request, petition or complaint (the specific form depends on the subject and subject of the appeal); The Constitutional Court is not entitled to conduct proceedings on the case on its own initiative. At the same time, there are examples of mandatory constitutional control: giving an opinion on compliance with the established procedure for accusing the President of the Russian Federation of high treason or committing another serious crime, checking the constitutionality of an international treaty on the admission of a new subject of the Russian Federation to Russia or materials on the implementation of the initiative to hold an all-Russian referendum .

5.3. Decisions of the Constitutional Court of the Russian Federation

The types of decisions of the Constitutional Court of the Russian Federation are the resolution, conclusion and definition. The resolution is the main type of the final decision of the Constitutional Court. It is the decisions that are adopted in the exercise of most of the powers of the Constitutional Court of the Russian Federation: when checking the constitutionality of legal acts, resolving disputes about competence, interpreting the Constitution of the Russian Federation. The conclusion is given by the Constitutional Court in the only case - when considering the established procedure for accusing the President of the Russian Federation of high treason or committing another serious crime. In other cases, definitions are accepted.

The legal nature of the decisions of the Constitutional Court of the Russian Federation is predetermined by their generally binding (normative) and precedent nature. Decisions of the Constitutional Court of the Russian Federation are binding not only for the applicants and the body that issued the act recognized as unconstitutional, but also for all state bodies, local self-government bodies, legal entities and individuals; they are final, not subject to appeal and take effect immediately upon promulgation. The decision of the Constitutional Court of the Russian Federation acts directly and does not require confirmation by other bodies and officials. At the same time, general and arbitration courts, as well as the Constitutional Court of the Russian Federation itself, have the right and are obliged to confirm the unconstitutionality of the provisions of normative acts similar to those that were previously recognized as inconsistent with the Constitution of the Russian Federation by the Constitutional Court, to recognize them as invalid. The legal force of the decision of the Constitutional Court of the Russian Federation on the recognition of an act as unconstitutional cannot be overcome by the repeated adoption of the same act. Acts or their individual provisions, recognized as unconstitutional, lose their force, and international treaties that have not entered into force are not subject to entry into force and application. The retroactive effect of decisions of the Constitutional Court of the Russian Federation is manifested in the fact that law enforcement decisions based on acts recognized as unconstitutional are not enforceable and must be reviewed in the prescribed manner, unless otherwise indicated in the act of the Constitutional Court itself, for example, the inexpediency of revising earlier court decisions. To implement the decisions of the Constitutional Court of the Russian Federation, the Federal Constitutional Law "On the Constitutional Court of the Russian Federation" provides for certain duties and deadlines for state bodies and officials to bring acts in line with the Constitution of the Russian Federation, and for non-execution of decisions of the Constitutional Court of the Russian Federation - appropriate liability.

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.

Topic 7. The concept of the legal status of an individual. System of rights and freedoms of man and citizen in the Russian Federation

Article 2 of the Constitution of the Russian Federation reveals the most important side of the characterization of Russia as a legal state: the highest value is proclaimed by a person, his rights and freedoms. All other social values ​​(including the duties of a person) have not received such a constitutional assessment, therefore, they are located in relation to it at a lower level and cannot contradict it. This provision is a fundamental novelty of Russian constitutionalism: previously, state interests (identified with public ones) always had priority.

The recognition of human rights and freedoms as the highest value means that in the event of a conflict between human rights and other constitutionally protected values, including those related to other foundations of the constitutional order, priority should be given to human rights. Chapter 2 of the Constitution of the Russian Federation, containing an open list of human and civil rights and freedoms, as well as Ch. 1 and 9, is, as noted, "protected", "more rigid" and cannot be changed by the Federal Assembly of the Russian Federation.

It is important that the fundamental rights and freedoms of man and citizen are considered as natural, belonging to everyone from birth (part 2 of article 17 of the Constitution of the Russian Federation), i.e. they exist objectively, and not at the will of the legislator, are not imposed, not granted by the state (the state should not establish them, but only recognize, observe and protect them as already existing ones), but pre-legislative and extra-legislative.

The natural nature of fundamental rights and freedoms also means that they cannot be not only acquired, but also transferred to anyone, that is, they are inalienable (and even renunciation of them is void). The state cannot have powers acquired at the expense of fundamental human rights and freedoms.

When characterizing the constitutional and legal status of an individual, it is important to keep in mind the following. If the legal status is a set of rights, duties, guarantees and responsibilities of the relevant subject of legal relations, then the constitutional legal status of an individual is a set of only basic (constitutional) rights, freedoms and duties of a person and a citizen; norms of constitutional law establish the foundations of the legal status of the individual.

The constitutional rights and freedoms of man and citizen have the following features:

▪ they are the starting point for establishing other rights, freedoms and legitimate interests in sectoral (special) legislation;

▪ they are characterized by a high degree of generalization and distribution;

▪ their occurrence is based not on specific legal facts, but on the very existence (birth) of a person, his status as a citizen of the Russian Federation;

▪ they are provided with increased legal protection.

7.2. Classification of the rights and freedoms of man and citizen

The Constitution of the Russian Federation does not normatively divide the rights and freedoms of a person and a citizen into any groups, however, based on a theoretical analysis of a wide range of constitutional and international norms, the fundamental constitutional legal institution of rights and freedoms can be classified.

1. The most general division of rights and freedoms - their division into human rights and civil rights - is associated with the dualism of civil and political society. As a member of civil society, a person has equal rights with all others, but as a member of a politically organized society, he has equal rights only with those who, like him, belong to a given state; he has more rights and obligations in his own country than those who do not belong to this state.

2. The concepts of law and freedom are largely equivalent (often they are identified, and in some areas of law freedom is not mentioned at all). But there is also a difference between them. "Freedom" is a more general concept than "right", quite often "freedom" is understood as a group of rights (in particular, political ones).

3. Sometimes rights and freedoms are divided into individual and collective (solidarity). Most of the individual rights and freedoms of a person and citizen can be exercised collectively, while collective rights and freedoms cannot be exercised individually. Collective, in particular, include the right to association (Article 30 of the Constitution of the Russian Federation), freedom of assembly, rallies, demonstrations, processions (Article 31), the right to strike (Part 4 of Article 37), the rights of indigenous peoples and national minorities (Article 69 of the Constitution, Federal Law No. 30.04.99-FZ of April 82, XNUMX "On Guarantees of the Rights of Indigenous Minorities of the Russian Federation"), the right to petition, the right to civil disobedience, etc.

4. Rights and freedoms can be divided into basic and additional (through which the main ones are realized). Thus, the right of citizens of the Russian Federation to participate in the management of state affairs (part 1 of article 32 of the Constitution of the Russian Federation) is realized, among other things, through the right of citizens to elect and be elected to state authorities and local governments, to participate in the administration of justice, to enter the state service (parts 2, 4, 5 of article 32); the right to privacy (part 1, article 23) is specified in the right of everyone to privacy of correspondence, telephone conversations, postal, telegraphic and other communications (part 2, article 23); freedom of movement, choice of place of stay and residence (part 1 of article 27) is supported by the right of everyone to freely travel outside the Russian Federation and the right of citizens of the Russian Federation to freely return to the Russian Federation (part 2 of article 27).

5. Rights and freedoms can be divided into general (belonging to a fairly wide range of people) and special (private), belonging to a much smaller circle of people. For example, if the rights of pensioners are considered as general, then the rights of disabled pensioners, military pensioners are considered special; the rights of civil servants - as general, and the rights of assistants to deputies, employees of the prosecutor's office - as special. The rights belonging to the same group of persons may in some cases be considered as general, and in others as special. In particular, in the pair "the rights of citizens of the Russian Federation - the rights of employees" the rights of employees are special, and in the link "the rights of employees - the rights of working women" the same rights are common.

6. Allocate absolute rights and freedoms (that is, those that under no circumstances can be limited) and rights and freedoms subject to legislative restriction. The former include the right to life, dignity of the individual, the right to housing, to judicial protection, freedom of conscience, freedom of entrepreneurial activity, inviolability of private life, etc. (part 3 of article 56 of the Constitution of the Russian Federation). The second - freedom of the press, freedom of movement, property rights, privacy of correspondence, etc.

7. The most developed and traditional is the classification of the rights and freedoms of man and citizen according to the spheres of manifestation of these rights and freedoms. It is this classification that is normatively formalized in numerous international legal acts, such as the UN Charter of 1945, the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights of 1966, the International Covenant on Economic, Social and Cultural Rights of 1966. , the Charter of the Council of Europe (Russia joined the Council of Europe in 1996), the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (ratified by the Russian Federation in 1998) and others. into three groups:

▪ personal (civil) rights and freedoms are those rights and freedoms that form the fundamental basis of the constitutional and legal status of the individual, provide constitutional protection of all spheres of a person’s private life (range of interests and needs, thoughts, judgments, records, diaries, social connections, intimate aspects of life, etc.) from excessive and unlawful interference of the state and other persons. Most of these rights and freedoms are natural and absolute in nature and are provided to all members of Russian society, regardless of the presence or absence of Russian citizenship;

▪ political rights and freedoms are rights and freedoms that ensure the participation of individuals (both individually and jointly with other persons) in the life of society and the state, including in the formation and exercise of public power. In contrast to personal rights, many political rights and freedoms belong only to citizens of the Russian Federation (but not all: for example, freedom of mass information, the right to association are guaranteed to every person, regardless of Russian citizenship);

▪ economic, social and cultural rights and freedoms are rights and freedoms that ensure the realization and protection of human vital needs in the economic, social and cultural spheres. The rights and freedoms of this group, like personal rights and freedoms, do not depend on citizenship and belong to every person. Many rights of this group are detailed in sectoral legislation: labor, pensions, family, housing, etc.

We list the basic rights and freedoms of a person and citizen of each group, indicating the constitutional provisions and some laws and other legal acts, through which concretization and detailing are carried out in the regulation of the relevant rights and freedoms (which is designed to facilitate independent work on understanding the content of specific rights and freedoms).

The Constitution of the Russian Federation refers to the personal rights and freedoms of a person and a citizen:

▪ right to life (Article 20 of the Constitution of the Russian Federation, Law of the Russian Federation dated December 22.12.1992, 4180 No. 1-59 “On transplantation of human organs and (or) tissues”, Article XNUMX of the Criminal Code of the Russian Federation, etc.);

▪ personal dignity (Article 21 of the Constitution of the Russian Federation, Criminal Procedure Code of the Russian Federation, Criminal Executive Code of the Russian Federation, Law of the Russian Federation dated July 02.07.1992, 3185 No. 1-XNUMX “On psychiatric care and guarantees of the rights of citizens during its provision,” etc.);

▪ the right to freedom and personal integrity (Article 2 of the Constitution of the Russian Federation, Article 37, Chapter 17 of the Criminal Code of the Russian Federation, Code of Criminal Procedure of the Russian Federation, Code of the Russian Federation on Administrative Offenses, Federal Laws of July 15.07.1995, 103 No. 13.12.1996-FZ “On the detention of suspects and accused of committing crimes", dated December 150, XNUMX No. XNUMX-FZ "On Weapons", etc.);

▪ the right to privacy, personal and family secrets, protection of one’s honor and good name (Articles 23, 24 of the Constitution of the Russian Federation, Family Code of the Russian Federation, Articles 137, 138 of the Criminal Code of the Russian Federation, Criminal Procedure Code of the Russian Federation, Federal Laws of August 12.08.1995, 144 No. 03.04.1995 -FZ "On operational intelligence activities", dated 40/18.04.1991/1026 No. 1-FZ "On the Federal Security Service", Law of the Russian Federation dated 150/152/1123 No. 16-11.02.1993 "On the police", Articles 4462-1, 25.07.1998 of the Civil Code of the Russian Federation ; Article 128 of the Fundamentals of the Legislation of the Russian Federation on notaries dated February XNUMX, XNUMX No. XNUMX-XNUMX, Federal Law dated July XNUMX, XNUMX No. XNUMX-FZ “On state fingerprint registration in the Russian Federation”, etc.);

▪ inviolability of the home (Article 25 of the Constitution of the Russian Federation, Article 139 of the Criminal Code of the Russian Federation, Article 8 of the Federal Law “On Operational Investigative Activities”, etc.);

▪ the right to determine and indicate nationality, use of one’s native language (the right to national and cultural self-identification) - Art. 26 of the Constitution of the Russian Federation, Law of the RSFSR dated October 25.10.1991, 1807 No. 1-30.04.1999 “On the languages ​​of the peoples of the Russian Federation”, Federal Law dated April 82, 6 No. XNUMX-ZF “On guarantees of the rights of indigenous peoples of the Russian Federation”, Art. XNUMX of the Law of the Russian Federation "On Education", etc.;

▪ freedom of movement and choice of place of residence (Article 27 of the Constitution of the Russian Federation, Law of the Russian Federation of June 25.06.1993, 5242 No. 1-15.08.1996 “On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation”, Federal Law of August 114, XNUMX No. XNUMX-FZ “On the procedure for leaving the Russian Federation and entering the Russian Federation”, etc.);

▪ freedom of conscience and religion, the right of a citizen to replace military service with an alternative civil service (Article 28, Part 3 of Article 59 of the Constitution of the Russian Federation, Federal Law of September 26.09.1997, 125 No. 148-FZ “On Freedom of Conscience and Religious Associations”, Art. 25.07.2002 of the Criminal Code of the Russian Federation, Federal Law of July XNUMX, XNUMX “On Alternative Civil Service”;

▪ freedom of thought and speech (Article 29 of the Constitution of the Russian Federation, Law of the Russian Federation of December 27.12.1991, 2124 No. 1-XNUMX “On the Mass Media”, etc.);

▪ the right to judicial protection, qualified legal assistance, procedural guarantees (Articles 46-54 of the Constitution of the Russian Federation, Law of the Russian Federation dated April 27.04.1993, 4866 No. 1-31.05.2002 “On appealing to the court actions and decisions that violate the rights and freedoms of citizens”, Federal Law dated 63/XNUMX/XNUMX No. XNUMX-FZ “On advocacy and advocacy in the Russian Federation”, procedural legislation of the Russian Federation).

Political rights and freedoms include:

▪ the right to association (Article 30 of the Constitution of the Russian Federation, Chapter 4 of the Civil Code of the Russian Federation, Federal Laws of May 19.05.1995, 82 No. 11.07.2001-FZ “On Public Associations”, dated July 95, 12.01.1996 No. 10-FZ “On Political Parties”, dated XNUMX .XNUMX No. XNUMX-FZ “On trade unions, their rights and guarantees of activity”, etc.);

▪ freedom of meetings, rallies, processions and demonstrations (Article 31 of the Constitution of the Russian Federation, Federal Law dated June 19.06.2004, 54 No. 149-FZ “On meetings, rallies, demonstrations, processions and picketing”, Article 04.06.1997 of the Criminal Code of the Russian Federation, Moscow Law dated XNUMX/XNUMX/XNUMX “On meetings and conferences of citizens at their place of residence in the city of Moscow”, etc.);

▪ the right to participate in the management of state affairs (including voting rights, the right to participate in the administration of justice), access to public service (Article 32 of the Constitution of the Russian Federation, Federal Constitutional Law of June 28.06.2004, 5 No. 12.06.2002-FKZ “On the referendum of the Russian Federation”, Federal laws of June 67, 31.07.1995 No. 119-FZ “On the basic guarantees of electoral rights and the right to participate in a referendum of citizens of the Russian Federation”, laws of July XNUMX, XNUMX No. XNUMX-FZ “On the fundamentals of the civil service of the Russian Federation”, procedural legislation, etc.);

▪ right of appeal ("right of petition") - Art. 33 of the Constitution of the Russian Federation, Moscow Law of July 18.07.1996, XNUMX “On Citizens’ Appeals”, etc.;

▪ freedom of information and the media (parts 4, 5 of Article 29 of the Constitution of the Russian Federation, Law of the Russian Federation dated December 27.12.1991, 2124 No. 1-20.02.1995 “On the Mass Media”, Federal Law dated February 24, 21.07.1993 No. 5485-FZ “On Information, informatization and information protection", Law of the Russian Federation dated July 1, 27.05.2003 No. XNUMX-XNUMX "On State Secrets" Federal Law dated May XNUMX, XNUMX "On the civil service system of the Russian Federation").

The group of economic, social and cultural rights and freedoms are:

▪ freedom of entrepreneurship (Article 34 of the Constitution of the Russian Federation, Civil Code of the Russian Federation, Law of the RSFSR dated March 22.03.1991, 948 No. 1-169 “On competition and restriction of monopolistic activities in commodity markets”, Articles 171, 173, XNUMX of the Criminal Code of the Russian Federation, etc.);

▪ the right of private property (Articles 35, 36 of the Constitution of the Russian Federation, Civil Code of the Russian Federation, Land Code of the Russian Federation, Chapter 21 of the Criminal Code of the Russian Federation, etc.);

▪ labor rights - to work and its payment (freedom of labor), to rest, to strike (Article 37 of the Constitution of the Russian Federation, Labor Code of the Russian Federation, Law of the Russian Federation of April 19.04.1991, 1032 No. 1-23.11.1995 “On Employment of the Population in the Russian Federation”, Federal Law of November 175, XNUMX No. XNUMX-FZ “On the procedure for resolving collective labor disputes”, etc.);

▪ the right to protection of family, motherhood, paternity and childhood (Article 38 of the Constitution of the Russian Federation, Family Code of the Russian Federation, etc.);

▪ the right to social security (Article 39 of the Constitution of the Russian Federation, Labor Code of the Russian Federation, Federal laws dated December 17.12.2001, 173 No. 15.12.2001-FZ “On labor pensions in the Russian Federation”, dated December 163, 24.11.1995 No. 181-FZ “On compulsory pension insurance in the Russian Federation”) Federation", dated November 12.01.1995, 5 No. XNUMX-FZ "On social protection of disabled people in the Russian Federation", dated January XNUMX, XNUMX No. XNUMX-FZ "On veterans", etc.);

▪ the right to housing (Article 40 of the Constitution of the Russian Federation, Housing Code of the Russian Federation, Chapter 18 of the Civil Code of the Russian Federation, Law of the Russian Federation dated July 04.07.1991, 1541 No. 1-XNUMX “On the privatization of housing stock in the Russian Federation”;

▪ the right to health care (Article 41 of the Constitution of the Russian Federation, Fundamentals of the legislation of the Russian Federation on the protection of the health of citizens dated July 22.07.1993, 28.06.1991, Law of the Russian Federation dated June 1499, 1 No. 29.04.1999-80 “On medical insurance of citizens in the Russian Federation”, Federal Law dated April XNUMX, XNUMX No. XNUMX-FZ "On physical culture and sports in the Russian Federation");

▪ the right to a favorable environment (Article 42 of the Constitution of the Russian Federation, Federal Laws dated January 10.01.2002, 7 No. 21.11.1995-FZ “On Environmental Protection”, dated November 170, 23.02.1995 No. 26-FZ “On the Use of Atomic Energy”, dated February 23.11.1995, 174 No. XNUMX-FZ “On natural medicinal resources, health-improving areas and resorts”, dated November XNUMX, XNUMX No. XNUMX-FZ “On environmental assessment”, etc.);

▪ the right to education and academic freedom (Article 43 of the Constitution of the Russian Federation, Law of the Russian Federation of July 10.07.1992, 3266 No. 1-22.08.1996 “On Education” as amended and additionally, Federal Law of August 125, XNUMX No. XNUMX-FZ “On Higher and Postgraduate Education”) vocational education", etc.);

▪ freedom of creativity (Part 1 of Article 44 of the Constitution of the Russian Federation, Law of the Russian Federation dated July 09.07.1993, 5351 No. 1-23.09.1992 “On Copyright and Related Rights”, Patent Law of the Russian Federation dated September 3517, 1 No. XNUMX-XNUMX, etc.);

▪ the right to participate in cultural life (Part 2 of Article 44 of the Constitution of the Russian Federation, Fundamentals of Legislation of the Russian Federation on culture dated 09.10.1992 No. 3612-1, Federal Laws dated 25.06.2002 No. 73-FZ “On objects of cultural heritage (historical monuments and culture) of the peoples of the Russian Federation", dated May 26.05.1996, 54 No. XNUMX-FZ "On the museum fund and museums of the Russian Federation", etc.).

7.3. Constitutional obligations of man and citizen

An integral part of the legal status of a particular subject of legal relations, along with rights, are the obligations of this subject, as well as guarantees of his rights and responsibility.

The Constitution of the Russian Federation of 1993, unlike previous Russian constitutions and the fundamental laws of some foreign states, does not contain a special chapter on the duties of a person and a citizen. At the same time, such obligations in the constitutional text are contained mainly in ch. 2 "Rights and freedoms of man and citizen", which emphasizes the inseparable unity of the two components of the constitutional and legal status of the individual in Russia - constitutional (fundamental) rights and freedoms and constitutional duties.

The Constitution of the Russian Federation speaks, in particular, of the following duties of a person and a citizen, specified and detailed in sectoral legislation:

1) comply with the Constitution of the Russian Federation and laws (part 2 of article 15);

2) respect the rights and freedoms of other persons (Part 3, Article 17);

3) the obligation of parents to take care of children, their upbringing and the obligation of adult able-bodied children to take care of their disabled parents (parts 2, 3 of article 38 of the Constitution of the Russian Federation, the Family Code of the Russian Federation);

4) the obligation of everyone to receive a basic general education and the obligation of parents or persons replacing them (adoptive parents, guardians, trustees) to ensure that children receive education of this level (part 4 of article 43 of the Constitution of the Russian Federation, the Law of the Russian Federation "On Education");

5) to take care of the preservation of historical and cultural heritage, to protect historical and cultural monuments (part 3 of article 44 of the Constitution of the Russian Federation, Fundamentals of the legislation of the Russian Federation on culture, the Federal Law "On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation", etc. .);

6) pay legally established taxes and fees (Article 57 of the Constitution of the Russian Federation, the Tax Code of the Russian Federation);

7) preserve nature and the environment, treat natural resources with care (Article 58 of the Constitution of the Russian Federation, the Water Code of the Russian Federation, the Forest Code of the Russian Federation, Federal Laws No. 10.01.2002-FZ of January 7, 14.03.1995 "On Environmental Protection", No. 33-FZ "On Specially Protected Natural Territories", No. 24.04.1995-FZ of April 55, 21.02.1992 "On the Wildlife", Law of the Russian Federation of February 2395, 1 No. XNUMX-XNUMX "On Subsoil", etc.).

8) the obligation of citizens of the Russian Federation to defend the Fatherland (Part 1, Article 59 of the Constitution of the Russian Federation, Federal Laws No. 31.05.1996-FZ of May 61, 28.03.1998 "On Defense", No. 53-FZ of March 25.07.2002, XNUMX "On Military Duty and Military Service", Federal Law of July XNUMX, XNUMX "On Alternative Civil Service".

Describing duties as a component of the constitutional and legal status of the individual, it should be borne in mind that:

▪ firstly, duties, unlike most rights and freedoms, are positive in nature, i.e. they are established normatively (by laws), while human rights in relation to the state are predominantly natural, extra-legislative in nature. Thus, a person does not have any “natural,” pre-legislative or extra-legislative responsibilities in relation to the state;

▪ secondly, the Constitution of the Russian Federation is based on the principle of unity of not only the rights and freedoms, but also the duties of citizens of the Russian Federation (Part 2 of Article 6), therefore, not a single citizen of Russia can and should not arbitrarily evade or be exempted from fulfilling that or another constitutional obligation, which, in contrast to law, which is a measure of the possible behavior of an authorized person, is a measure of the proper, necessary behavior of an obligated person. Exemption from a particular obligation, as well as its establishment, can only take place on the basis of law;

▪ thirdly, like some rights and freedoms, certain responsibilities may not be assigned to any person living in Russia (for example, the obligation to pay taxes and fees, preserve nature and the environment, etc.), but only to citizens of the Russian Federation (in particular, the duty to defend the Fatherland).

Topic 8. Institute of citizenship

Citizenship is a stable legal relationship between a person and the state, expressed in the totality of their mutual rights and obligations.

The Constitution of the Russian Federation establishes only the basic principles of the institution of citizenship (including in Chapter 1 "Fundamentals of the constitutional order"), while the detailed regulation of this constitutional legal institution is enshrined in the Federal Law of May 31.05.2002, 62 No. 28.11.1991-FZ "On Citizenship of the Russian Federation" with rev. and additional (hereinafter referred to as the Law on Citizenship), adopted to replace the Law of the Russian Federation of the same name dated November 1948, 1 No. 11-2003. The main novelties of the new law come down to the greater rigidity of its rules on the acquisition of Russian citizenship compared to the rules provided for by the previous law, however, on November XNUMX, XNUMX, a number of amendments and additions were made to the Law on Citizenship, facilitating the procedure for acquiring Russian citizenship for certain categories of applicants , especially compatriots from the CIS countries.

For persons who already have the citizenship of the Russian Federation on July 1, 2002 (the day the law enters into force), no re-registration or re-registration of citizenship is required.

The Constitution of the Russian Federation and the Law on Citizenship establish the following principles of citizenship of the Russian Federation:

Unity of citizenship. In accordance with this principle, republics - subjects of the Russian Federation cannot establish their own citizenship, which provides for exemptions from the general, unified status of a citizen of the Russian Federation (the Law on Citizenship, unlike the Law of 1991, does not speak at all about the citizenship of republics within the Russian Federation); a citizen of the republic is simultaneously a citizen of the Russian Federation; the legal status of a Russian citizen residing in any republic is uniform throughout Russia and does not differ in any way from the status of a Russian citizen residing in another subject of the Russian Federation; the establishment of citizenship by a republic within the Russian Federation does not give rise to dual citizenship of a person living in this republic - the Russian Federation and the corresponding republic.

▪ Equality of citizenship regardless of the grounds for acquiring citizenship, as well as gender, nationality, age, social origin and status, etc. In particular, the citizenship of a married woman in Russia does not depend on the citizenship of her husband (and vice versa), the conclusion or dissolution of a marriage between a citizen of the Russian Federation and a person who does not have Russian citizenship does not entail a change in the citizenship of these persons; a change in citizenship by one of the spouses does not entail a change in the citizenship of the other spouse (Article 8 of the Citizenship Law).

▪ Preservation of citizenship when a Russian citizen lives abroad. There are no deadlines after which, if a Russian citizen lives in another state, he would lose citizenship of the Russian Federation. The right to change citizenship is an inalienable right of any Russian citizen; refusal to renounce citizenship of the Russian Federation can only be motivated and on the basis of suspensive circumstances provided for by law.

▪ Impossibility of depriving a citizen of the Russian Federation of citizenship or the right to change it. This principle is intended to ensure the unhindered exercise by a citizen of his rights without fear of losing Russian citizenship (in particular, for dissent, disagreement with the policies of the authorities, etc.). If a Russian citizen carries out any illegal activity, various types of liability and punishment may be applied to him, but Russian legislation does not and cannot provide for such a sanction as “deprivation of citizenship.”

▪ Impossibility of deporting a Russian citizen outside Russia or extraditing him to a foreign state (extradition). A citizen of Russia cannot be expelled from the country, nor can he have obstacles to returning to his homeland (at the same time, this principle does not limit the powers of government bodies of the Russian Federation to expel foreign citizens and stateless persons from Russia on the grounds provided by law). A Russian also cannot be extradited to another state in the event of committing an offense abroad and presenting a corresponding request from that state for extradition for the purpose of bringing to justice (extradition of other persons located on the territory of the Russian Federation is possible on the basis of interstate treaties on legal assistance for criminal prosecution responsibility or execution of a sentence). However, if the committed act for which a Russian citizen is being prosecuted is also illegal from the point of view of Russian legislation, then this citizen must be held accountable according to the norms of the legislation of the Russian Federation.

8.2. Grounds for acquisition and loss of citizenship

In accordance with Ch. 2 of the Law on Citizenship, citizenship of the Russian Federation may be acquired on the following grounds:

▪ by birth (filiation);

▪ as a result of admission to citizenship (naturalization);

▪ as a result of restoration of citizenship (reintegration);

▪ as a result of choosing citizenship (option).

When acquiring citizenship by birth in the states of the world, two main principles are applied: the principle of "rights of the blood", according to which the citizenship of a child is determined by the citizenship of the parents, regardless of the place of birth, and the principle of "right of the soil", according to which the citizenship of the child, on the contrary, is determined by the place birth, the territory of the state in which he was born, regardless of the citizenship of his parents. The use of the first or second principle as the predominant one in a particular state is determined by a number of factors (tradition, population size and density, demographic policy, etc.) and does not exclude their combination.

In the Russian Federation, when determining the citizenship of born children, both principles are applied, but the principle of "blood rights" prevails. This means that regardless of the place of birth, a child acquires Russian citizenship if both of his parents or the only parent are citizens of the Russian Federation, and also if one of his parents has Russian citizenship and the other is a stateless person, or is declared missing, or his place location unknown.

At the same time, Russian legislation allows the application of the principle of "rights of the soil", primarily in order to exclude and reduce the state of statelessness of born children. This is possible subject to the birth of a child in Russia in the following cases:

▪ if one of the parents has Russian citizenship, and the other is a foreign citizen. It should be noted that in such a situation, the child can also acquire citizenship of the state of which the second parent is a citizen, however, if the legislation of this state does not provide for such a possibility and the child can become a stateless person, then he acquires citizenship of the Russian Federation under Russian legislation;

▪ if both parents (or the only parent) living on the territory of the Russian Federation are foreign citizens or stateless persons, provided that the states of which the parents (or the only parent) are citizens do not grant their citizenship to the child;

▪ if the child’s parents are unknown and do not show up within six months from the date of his discovery on the territory of the Russian Federation. In this case, the exact place of birth of the child is unknown, but a kind of presumption of his birth is established on the territory of Russia, giving grounds for acquiring Russian citizenship according to the principle of “right of soil.”

Filiation is the most common and simplest basis for acquiring citizenship, and does not require any special procedure. Citizenship in the presence of the conditions considered is acquired, as it were, automatically, by virtue of the very fact of the birth of a child (an insert is issued to the birth certificate confirming that the child has citizenship of the Russian Federation, the form of which is approved by Decree of the Government of the Russian Federation dated 06.02.03 No. 61 "On approval of the form of the insert on the birth certificate confirming that the child has the citizenship of the Russian Federation").

Citizenship (naturalization) involves a more complex special procedure and more stringent conditions. Admission to Russian citizenship can be carried out in a general and simplified manner. General conditions for naturalization:

▪ a foreign citizen or stateless person has reached the age of 18 and has legal capacity (naturalization of minor children is carried out in a simplified manner);

▪ residence qualification (residence qualification) - a person wishing to acquire citizenship of the Russian Federation must, at the time of applying for the relevant application, reside continuously in the territory of Russia for five years, while having a residence permit (preliminary receipt of a residence permit is a prerequisite for applying with an application for admission to Russian citizenship, illegal and semi-legal actual residence is not taken into account); the period of residence on the territory of the Russian Federation is considered continuous if a person has traveled outside Russia for no more than three months within one year (the previous law on citizenship provided for a more lenient residency requirement - five years of permanent residence or three years of continuous residence). For persons who arrived in the Russian Federation for permanent residence before July 1, 2002 (the date of entry into force of the Citizenship Law), the period of residence is calculated from the date of registration at the place of residence. The period of residence on the territory of the Russian Federation as a mandatory condition for naturalization may be reduced to one year in the following cases:

▪ the applicant has high achievements in various fields of science, technology, culture, art, sports, etc. and professional qualities (specialties, qualifications, etc.) of interest to Russia;

▪ granting the applicant political asylum on the territory of the Russian Federation or recognizing him as a refugee in the prescribed manner.

▪ obligation to comply with the Constitution of the Russian Federation and Russian legislation (this condition seems to be largely formal, since the obligation to comply with the Constitution of the Russian Federation and laws lies with all citizens of Russia without exception and other persons located on its territory, without any additional obligations, promises, receipts and so on.);

▪ having a legal source of livelihood. First of all, this refers to work under an employment contract and entrepreneurial activity, although other sources are not excluded (pensions, scholarships, benefits, income from the use of property, bank deposits, etc.). This condition is a novelty in Russian citizenship legislation;

▪ renunciation of citizenship of a foreign state by a citizen of that state who wishes to acquire Russian citizenship; in some cases such refusal is not required);

▪ proficiency in the state language of the Russian Federation, i.e. Russian, at a level sufficient for communication orally and in writing in a language environment.

If a foreign citizen or a stateless person who wishes to acquire Russian citizenship has special merits to the Russian Federation (outstanding achievements in science, technology, production, culture, sports, a significant contribution to the development of society and the economy, ensuring the defense capability and security of the Russian Federation, other merits contributed to the increase in the international prestige of Russia, confirmed by the mechanism of an objective assessment of these merits), then citizenship can be granted to him at the request of a federal government body or the head of a constituent entity of the Russian Federation without observing the conditions discussed above. Thus, in 2003, Russian citizenship was granted to 3. Tsereteli, American basketball player John Holden. Without observing the general conditions for naturalization, Russian citizenship can also be granted to citizens of states - the former republics of the USSR, who served in the Russian Armed Forces under a contract for at least three years. All that is needed for this is a document confirming knowledge of the Russian language, an obligation to renounce the existing citizenship, as well as a petition from the Ministry of Defense of the Russian Federation or another federal executive body that provides for military service.

The final decision on admission to Russian citizenship in the general procedure is made by the President of the Russian Federation by issuing an individual decree, while the period for making such a decision may be up to one year from the date of submission of the application and all necessary and properly executed documents.

Naturalization in Russia can also be carried out in a simplified manner. This procedure is provided both for children and incapacitated persons, and for adult and capable foreign citizens and stateless persons. In the first case, the will to acquire citizenship by incapable (or not fully capable) persons is expressed by their legal representatives: parents, guardians, trustees. To implement this procedure in relation to adult and capable applicants, the following conditions are required:

▪ the presence of at least one parent - a citizen of the Russian Federation living in Russia;

▪ residence in the CIS and Baltic states of former citizens of the USSR, if they have not yet received citizenship of the state of residence and remain stateless;

▪ obtaining vocational education (secondary or higher) by citizens of the CIS or Baltic states in Russian educational institutions after July 1, 2002;

▪ the birth of a foreign citizen or stateless person on the territory of the RSFSR before the collapse of the USSR and his past citizenship of the USSR;

▪ being married to a citizen of the Russian Federation for at least three years (i.e., the mere fact of marriage to a Russian citizen, as well as a short-term marriage, does not give the right to reduce the residency requirement);

▪ the disabled applicant has adult, capable children - citizens of Russia, etc.

The issues of admission to Russian citizenship in a simplified manner, including the adoption of a final decision, are handled by authorized executive bodies - the Ministry of Internal Affairs and the Ministry of Foreign Affairs of Russia through the relevant structures on the territory of the Russian Federation and abroad. Since this procedure is simpler and allows resolving issues on the ground, the time for making a decision has been halved: it cannot exceed six months from the date of submission of the application and all necessary documents.

At first glance, restoration of citizenship of the Russian Federation does not seem to be a completely logical basis for acquiring citizenship, since there is a principle of the impossibility of depriving citizenship (and in the legislation of most states there is no such basis for acquiring citizenship). But the Law on Citizenship contains this basis, although its legal regulation has changed significantly compared to the previous law. If earlier restoration of Russian citizenship was carried out according to a fairly simple procedure (in the order of registration) and was relevant, in particular, for persons who in the past were deprived of Soviet citizenship against their will, now these persons can acquire citizenship of the Russian Federation only in a general manner , i.e. in the order of naturalization. At the same time, on this basis, foreign citizens and stateless persons who had the citizenship of the Russian Federation earlier, but then changed or lost it (for example, in connection with a change in the citizenship of parents, adoption, establishment of guardianship or guardianship, in case of renunciation of Russian citizenship). However, the procedure for acquiring citizenship of the Russian Federation in the manner of restoration is the same as for admission to citizenship in the general manner, with only one mitigating condition - the period of residence in Russia for applicants is reduced to three years.

The choice of citizenship (option) as a basis for acquiring citizenship of the Russian Federation may take place when the state border is changed in connection with the annexation of new populated territories to Russia. In this case, persons residing in the territory whose nationality has been changed have the opportunity to choose Russian citizenship with the unconditional right to retain their former citizenship. The procedure and terms of the option must be established by the relevant international treaty. It should be borne in mind that the option can also serve as a basis for the termination of the citizenship of the Russian Federation in the event of the transfer of part of the Russian territory in accordance with an international treaty under the jurisdiction of another state, if in this situation the citizens of Russia wish to change Russian citizenship to the citizenship of the state to which the corresponding territory has passed .

In addition to the option, grounds for termination of citizenship of the Russian Federation are withdrawal from Russian citizenship and cancellation of the decision to grant Russian citizenship.

Withdrawal from the citizenship of the Russian Federation, although it is a voluntary act, must be carried out according to a certain procedure: in a general manner (with an application addressed to the President of the Russian Federation, who makes the final decision), if a citizen lives in Russia, or in a simplified manner (application submitted and considered by the relevant structures of the Ministry of Foreign Affairs of the Russian Federation) if a Russian citizen lives in a foreign state. Termination of the citizenship of the Russian Federation of a child, one of whose parents or the only parent is a foreign citizen, can also be carried out in a simplified manner (in this case, the issue will be considered by the relevant structures of the Ministry of Internal Affairs of Russia); in case of adoption (adoption) of a child - a citizen of Russia by a foreign citizen (or foreign citizens), the child's citizenship may be terminated in accordance with the general procedure.

Renunciation of Russian citizenship may be denied on the following grounds:

▪ if the applicant has an unfulfilled obligation to the Russian Federation stipulated by federal law (for example, the period of military service has not expired, there are arrears on taxes and fees, the established period has not expired since the last access to information constituting a state secret, etc.);

▪ if the applicant is brought to criminal liability in the prescribed manner (the court’s conviction has entered into force, charges have been brought in a criminal case);

▪ if the applicant does not have another citizenship and guarantees of its acquisition (this restriction may not seem entirely democratic, although its purpose is obvious - to eliminate the situation of statelessness).

In contrast to renunciation of citizenship, the cancellation of the decision on admission to the citizenship of the Russian Federation is carried out by state bodies regardless of the will of the citizen. The basis for the cancellation of the decision on admission to citizenship is the establishment of the facts of the submission by the applicant of false documents or knowingly false information, and such facts should be established only in court. The cancellation of the decision on admission to Russian citizenship is made by the body that made the decision on admission to citizenship: the President of the Russian Federation, the relevant structures of the Ministry of Internal Affairs or the Ministry of Foreign Affairs of Russia. The Law on Citizenship does not contain a provision on the statute of limitations for the adoption of the decision in question - the cancellation of the decision on admission to citizenship can take place at any time (previous legislation contained a statute of limitations of five years, after which the cancellation of the decision on admission to citizenship was impossible). Cancellation of the decision on admission to the citizenship of a citizen does not entail the automatic termination of the citizenship of his spouse, children and other relatives (the citizenship of a child in this case can be terminated only with the written consent of the other parent - a citizen of the Russian Federation and provided that the child does not become a stateless person ).

8.3. Dual citizenship and statelessness. Legal status of foreigners

The Russian Federation, like most states of the world, following the principle of exclusivity of citizenship, generally has a negative attitude towards the institution of dual citizenship (as a general rule, a person should have a stable legal relationship with only one state). At the same time, both the Constitution of the Russian Federation and the Law on Citizenship allow for the possibility for a Russian citizen to simultaneously have the citizenship of another state. In some cases, the presence of both Russian citizenship and citizenship of another state can be considered as a benefit, for example, for compatriots who are citizens of the CIS and Baltic states. Possession by a Russian citizen at the same time of citizenship of another state is possible by virtue of an international agreement (this agreement should, as a rule, be bilateral, with a specific state) or a direct indication of the law (agreements on dual citizenship are concluded by the Russian Federation only with Tajikistan and Turkmenistan. In addition, a citizen of the Russian Federation can acquire citizenship of a foreign state if the national legislation of this state provides for the granting of one's citizenship without the obligatory loss of citizenship of another state (in particular, Russia).

Persons with dual citizenship (dual nationality) are considered by the Russian state only as citizens of Russia, with an appropriate set of rights and obligations, exceptions to this rule are possible only on the basis of the law (in particular, in accordance with Federal Law No. 28.03.1998-FZ of March 53, XNUMX "On military duty and military service" citizens of the Russian Federation who have completed military service in a foreign state are exempt from military service in Russia) or an international treaty (for example, by virtue of interstate agreements on exemption from double taxation).

The population of any state is made up not only of citizens of this state, but also of all people living in it, including foreign citizens and stateless persons (stateless people). In some states of the Middle East, for example, foreigners and stateless persons who come to work make up about half of the population. The status of foreigners and stateless persons in Russia is regulated by Federal Law No. 25.07.2002-FZ of July 118, XNUMX "On the Legal Status of Foreign Citizens in the Russian Federation" and a large number of by-laws and depends, among other things, on whether such a person lives in Russia permanently ( permanent residence regime) or is here temporarily (temporary stay and temporary residence regimes).

Special regulation in the Russian Federation is subject to the status of refugees - persons who do not have Russian citizenship, arrived or intend to arrive on the territory of the Russian state due to forced circumstances, as a result of violence or persecution on the basis of race or nationality, religion, language, membership of a certain social group or political opinions (Law of the Russian Federation of February 19.02.1993, 4528 No. 1-19.02.1993 "On Refugees"). Refugees should be distinguished from internally displaced persons who, although they left their place of permanent residence for the same reasons as refugees, are citizens of Russia; in addition, they can be forced to move not only from outside the Russian Federation, but also within the Russian Federation from one region to another. The status of forced migrants is in many respects similar to the status of refugees and it is regulated by the Law of the Russian Federation of February 4530, 1 No. XNUMX-XNUMX "On forced migrants" with amend. and additional

If foreign citizens and stateless persons are forced to leave the territory of another state due to persecution for their beliefs (for ideological reasons), they may be granted political asylum in accordance with recognized international standards. The granting of asylum in Russia falls within the competence of the President of the Russian Federation (paragraph "a" of Article 89 of the Constitution of the Russian Federation) and is carried out in accordance with the Regulations approved by his decree.

In accordance with Part 3 of Art. 62 of the Constitution of the Russian Federation, foreigners and stateless persons in Russia generally enjoy the same rights and obligations as its citizens, i.e. they are subject to national treatment. Exceptions here can only be established by law and relate mainly to political rights and freedoms.

Topic 9. Guarantees of human and civil rights and freedoms

Guarantee (from French garantie) - a guarantee, commission, provision, condition that ensures something. Guarantees of the rights and freedoms of man and citizen are, on the one hand, a component of the legal status of the individual, on the other hand, of the more capacious concept of "constitutional guarantees", which should be understood as a set of legal norms and institutions that ensure the protection of constitutional principles, human rights, and the foundations of the constitutional order , the fulfillment of constitutional duties and the functioning of various public authorities. Thus, guarantees of the rights and freedoms of man and citizen are a set of constitutional and legal norms, institutions, means, methods, mechanisms and procedures that ensure the implementation, protection and protection of constitutional rights and freedoms of man and citizen.

The system of guarantees of rights and freedoms is quite extensive and includes the following components:

▪ socio-economic (material) guarantees - stability of the economy, property relations, efficiency of the tax system and tax collection, etc. (and hence - high-quality implementation of various social programs, effective implementation of personal, political, socio-economic and cultural rights and freedoms);

▪ political guarantees - the democratic nature of power and the corresponding state regime, ensuring political stability, a high level of political culture of the authorities, individuals, and various institutions of civil society;

▪ legal guarantees - the actual legal means and methods for the implementation and protection of rights and freedoms.

Legal guarantees, in turn, are divided into two groups: formal legal and institutional guarantees.

Formal legal guarantees consist in the normative consolidation (directly in the Constitution of the Russian Federation and in other laws) of the above and other provisions aimed at ensuring rights and freedoms. It is difficult to overestimate the importance of such constitutional provisions as the proclamation of rights and freedoms as the highest value as one of the foundations of the constitutional system, defining the observance of human rights and freedoms as the main duty of the state (Article 2 of the Constitution of the Russian Federation), securing fundamental rights and freedoms at the level of the Basic Law (Chapter 2) and recognition of universally recognized norms and principles of international law (including international human rights standards) as an integral part of the Russian legal system (part 4 of article 15), prohibition of the application of any unpublished regulatory legal acts affecting rights, freedoms and duties of a person and a citizen (part 3, article 15), establishing the equality of everyone before the law and the court (part 1, article 19), assigning to the President of the Russian Federation the function of guarantor of the Constitution of the Russian Federation, the rights and freedoms of man and citizen (part 2, article 80), a ban on the publication of laws that abolish or diminish the rights and freedoms of man and citizen (part 2 of article 55), granting everyone the right seek their rights and freedoms by all means not prohibited by law, including self-defense (Art. 2 tbsp. 45), etc.

Fundamentally important is the constitutional prohibition of arbitrary restriction of the rights and freedoms of man and citizen in Russia. Freedom is not unlimited. As a member of society, a person also has certain obligations to other people, society, the state, including a passive type duty - not to violate the rights and legitimate interests of others (part 3 of article 17 of the Constitution). Based on this, the Basic Law of the Russian state provides for the possibility of restricting the rights and freedoms of man and citizen in Russia. However, such a restriction cannot be arbitrary and unlimited, and in accordance with Part 3 of Art. 55 of the Constitution of the Russian Federation is conditioned by three conditions.

First, the rights and freedoms of man and citizen can only be limited by federal law. Thus, a literal interpretation of this constitutional provision excludes the possibility of restricting rights and freedoms by the laws of the constituent entities of the Russian Federation (which, unfortunately, is quite widespread in practice) and legal acts of a subordinate nature (presidential decrees, government decrees, departmental acts, acts of the heads of regions, local authorities). self-government, etc.).

Secondly, the restriction of the rights and freedoms of a person and a citizen is possible only for strictly defined purposes, ensuring the protection of important social values. The list of such goals (reasons) is extensive, which allows for a broad interpretation, but nevertheless exhaustive:

1) protection of the foundations of the constitutional order;

2) protection of morality;

3) protection of the health of other persons;

4) protection of the rights and legitimate interests of other persons;

5) ensuring the defense and security of the state.

Thirdly, even in the presence of these grounds, the restriction of rights and freedoms is possible only to the extent that it is necessary to achieve these goals.

In addition to the general conditions for restricting rights and freedoms, the Constitution of the Russian Federation also contains some special conditions. In particular, in accordance with Part 1 of Art. 56 in connection with the introduction of a state of emergency throughout Russia or in some of its localities, such restrictions may be established with the obligatory indication of the limits and duration of their validity.

Examples of legislative restrictions on the rights and freedoms of man and citizen for these purposes are contained, in particular, in the Federal Constitutional Laws of May 30.05.2001, 3 No. 30.01.2001-FKZ “On a State of Emergency” and of January 1, 05.03.1992 No. 2446-FKZ “On Martial Law”, in Laws of the Russian Federation dated 1/01.04.1993/4730 No. 1-12.08.1995 “On Security”, dated 144/27.05.1998/76 No. XNUMX-XNUMX “On the State Border of the Russian Federation”, in Federal Laws dated XNUMX/XNUMX/XNUMX No. XNUMX-FZ “On Operational Investigative Activities”, and dated May XNUMX, XNUMX No. XNUMX-FZ “On the status of military personnel”, etc. We are talking about general restrictions for an indefinite number of persons, but specific restrictions on individual rights and freedoms (freedom of movement, the right to occupy certain positions and engage in certain activities, free disposal their property, etc.) of individuals may take place on the basis of a court decision (as a sanction for an offense committed or a measure aimed at ensuring a fair and objective decision by the court) or a reasoned resolution of other competent government bodies (for example, an investigator’s resolution on application of a recognizance not to leave as a preventive measure).

Provided for in Part 3 of Art. 55 of the Constitution of the Russian Federation, the conditions for restricting the rights and freedoms of man and citizen must be observed not only in relation to the rights and freedoms enshrined directly in the Basic Law, but also in relation to other rights granted to certain categories of citizens in Russia (veterans, pensioners, students, military personnel, etc.). .) industry and current legislation.

In accordance with Part 2 of Art. 55 of the Constitution of the Russian Federation in the Russian Federation should not be issued laws that abolish or diminish the rights and freedoms of man and citizen. The literal interpretation of this norm (i.e., the prohibition to abolish and diminish not only the rights provided for in the Constitution, but also the rights constituting the so-called special legal status and enshrined in sectoral and special legislation) "binds" the legislator, not allowing under any circumstances issue laws that increase taxes and other payments, establish more severe penalties, cancel any benefits for certain categories of citizens, etc. The Constitutional Court of the Russian Federation, in particular, has repeatedly indicated in its acts that in a legal social state the abolition of rights is unacceptable, benefits and benefits established, among other things, in laws of a special nature (in Federal Law No. 12.01.1995-FZ of January 5, 19.02.1993 "On Veterans", in the laws of the Russian Federation of February 4530, 1 No. 09.06.1993-5142 "On Forced Migrants", dated 1. XNUMX No. XNUMX-XNUMX "On the donation of blood and its components", etc.).

The Constitution of the Russian Federation provides for the so-called absolute rights and freedoms (part 3 of article 56), which cannot be normatively limited under any circumstances, even if a state of emergency has been introduced, there has been a large-scale natural disaster, a man-made disaster, etc. , in particular, include the right to life, dignity of the person, inviolability of private life, freedom of conscience, freedom of entrepreneurial activity, the right to housing, the right to judicial protection with appropriate procedural guarantees.

Despite the importance of formal legal guarantees, the leading role in the protection of rights and freedoms belongs to institutional guarantees. It is possible to standardize generally accepted democratic approaches to the main characteristics of the constitutional and legal status of an individual, but if a person in a particular state does not have a real opportunity to restore and protect his violated rights, then the value of formal legal guarantees will be nullified and they will be perceived as fictitious norms.

The system of institutional guarantees includes, firstly, various state and public bodies and organizations to which a citizen can apply for the protection of his rights; secondly, ways of exercising rights and freedoms and procedural guarantees, i.e. procedures that ensure the implementation, protection and protection of rights and freedoms (parliamentary procedures, administrative complaint procedures, amnesty and pardon, judicial procedures, etc.).

There are the following ways of exercising rights and freedoms and fulfilling obligations:

▪ personal, in which the exercise of rights and freedoms does not require not only obtaining permission, but also notifying any authorities. In this order, in particular, freedom of thought and speech, freedom of conscience, property rights, freedom of creative activity, the right to national and cultural self-identification, to participate in cultural life, etc. are exercised;

▪ declarative (notification). This is how the right to strike, to carry out entrepreneurial activities, freedom to choose a place of residence, freedom of rallies, processions, etc. are realized; the duty of the state to notify citizens about the payment of taxes and other payments, to summon them to court and to law enforcement agencies, etc.;

▪ permissive, associated with the need to obtain permission from the competent government bodies to exercise certain rights and freedoms (for example, to carry out certain types of business activities, visit certain areas and objects, etc.).

The links in the system of state and non-state bodies and organizations designed to ensure the protection and protection of the rights and freedoms of man and citizen include:

▪ The President of the Russian Federation, whose Administration employees are constantly working with letters and appeals and receiving citizens on a variety of issues;

▪ prosecutorial authorities, whose functions include promptly responding to any violations of laws in the Russian Federation;

▪ various executive authorities (justice, internal affairs, security, healthcare, education, transport, etc.), called upon, among other things, to resolve numerous issues regarding applications, complaints, claims, complaints of citizens and their associations;

▪ Commissioner for Human Rights, whose status is enshrined in the Federal Constitutional Law of February 26.02.97, 1 No. XNUMX-FKZ “On the Commissioner for Human Rights in the Russian Federation” (the effectiveness of this body’s appeals to various authorities is still based mainly on its authority and is not supported by specific real powers); similar institutions at the regional level (not yet established in all constituent entities of the Russian Federation);

▪ human rights commissions in the constituent entities of the Russian Federation (currently such commissions have been created in the vast majority of regions);

Commissioner for Children's Rights in the Russian Federation and similar bodies established in some constituent entities of the Russian Federation (in particular, in Moscow);

▪ government bodies of the constituent entities of the Russian Federation and local self-government bodies, which are the level of public authority closest to the population;

▪ Bar, notary;

▪ various all-Russian, regional and local public bodies and organizations created to protect specific types of rights and legitimate interests of Russian citizens (for example, the Russian Copyright Society, the Confederation of Societies for the Protection of Consumer Rights, various kinds of associations and unions, etc.).

The main institutional guarantee of human and civil rights and freedoms in the Russian Federation is the guarantee of judicial protection. The right to judicial protection of violated rights refers to the personal inalienable rights of everyone and is supported by a number of procedural guarantees (Articles 46-54 of the Constitution of the Russian Federation). It includes the right to receive qualified legal assistance (including free of charge in cases specified by law), the presumption of innocence in criminal proceedings, the prohibition of re-conviction for the same crime, the right to review a court decision, a ban on the use of illegal evidence, guarantees against self-accusation, the prohibition of the retroactive effect of the law (but only the law that worsens the position of the subjects of legal relations), guarantees of the rights of victims, etc.

It is the judicial procedure for the protection of violated rights that is the general procedure, an alternative to the use of a special (administrative, claim, etc.) procedure for protection. At the same time, the right to choose an instance to apply for protection of a violated right belongs to the most authorized person, with the exception of a limited number of cases provided for by law, when the use of a pre-trial procedure is a mandatory prerequisite for going to court, in particular, when resolving transport disputes, disputes in the field of patent legal relations and others

In accordance with Part 2 of Art. 46 of the Constitution of the Russian Federation, Law of the Russian Federation of April 27.04.1993, 4866 No. 1-2007 "On Appeal to Court of Actions and Decisions Violating the Rights and Freedoms of Citizens", amended. and additionally, any decisions and actions (inaction) of state authorities and local governments, as well as decisions and actions of bodies of legal entities, public associations, military authorities and officials can be appealed to the court. At the same time, the Constitution of the Russian Federation and other laws use the general term "court", which covers various levels of courts of general jurisdiction, arbitration courts, in the future - administrative courts, arbitration courts, the Constitutional Court of the Russian Federation and constitutional (statutory) courts of the constituent entities of the Russian Federation (created so far far from in all Russian regions). The choice of a specific judicial authority for appeal is determined by a number of conditions, primarily the rules on jurisdiction and jurisdiction. However, in any case, a person (associations of citizens) has the right "to a proper court" ("the right to his own judge"), i.e. the right to have his case considered in that court and by that judge to whose jurisdiction it is attributed by law, including the possibility of considering his case by a jury in certain cases of accusation of a criminal offense (as of today, jury trials should be established in all subjects of the Russian Federation, with the exception of the Chechen Republic, in which the specified court should start functioning from XNUMX).

Russian citizens have a constitutional opportunity to apply for the protection of their rights to interstate bodies (part 3 of article 46 of the Constitution of the Russian Federation). It should be borne in mind that such an appeal is a rather complicated procedure, due to a number of circumstances, the main of which are, firstly, the existence of an appropriate international treaty of the Russian Federation and, secondly, the exhaustion of all possible domestic legal remedies.

Of the international bodies for the protection of human and civil rights and freedoms, the most famous and authoritative is the European Court of Human Rights (in Strasbourg), access to which Russian citizens received after Russia joined the Council of Europe in February 1996 and ratified the European Convention on the Protection of Human Rights rights and fundamental freedoms in March 1998. The decisions of the European Court of Justice are binding on states that have accepted its jurisdiction. Despite the complicated procedure for applying to the European Court of Human Rights, the number of complaints and appeals from Russia is already in the thousands (according to some estimates, up to 10% of all cases accepted by the Court for consideration). On May 7, 2002, following the consideration of the case "Burdov v. Russia", the first decision was made in favor of a Russian citizen: the Court decided to pay 3 thousand euros from the Russian state treasury to A. Burdov, a participant in the liquidation of the consequences of the accident at the Chernobyl nuclear power plant, as compensation for the delay in the prescribed Russian legislation of payments.

Topic 10. Concept and principles of Russian federalism

As one of the foundations of the constitutional order, Art. 1 of the Constitution of the Russian Federation establishes the federal structure of Russia, which reflects the official name of the state. Among the relatively small number of federations in the world, the position of the Russian Federation is unique: it is the largest federation in the world not only in terms of the absolute number of subjects (89), but also in terms of the number of their varieties (6).

The terms "federation" and "federalism" are in high demand in the modern world, and not only in science, but also in such areas of public relations as literature, journalism, sports, culture, trade union and other professional activities, the functioning of various institutions of civil society and public associations (women's, youth, student, children's, veterans', etc.). In the broad sense of the word, a federation (from Latin federare - to unite, strengthen with a union) is understood as any system, structure, consisting of unequal parts.

The terms under consideration also have their own legal meaning. However, they are not identical, but correlate as form and content. Federation is a form of territorial-state structure, in which the constituent parts of the state are relatively independent state formations - the subjects of the federation; federalism, on the other hand, is a manifestation of established federal relations, these are federal relations themselves in all their diversity. Federalism is rightly regarded as an intersectoral concept containing not only legal, but also political, sociological, psychological, historical, economic and other aspects. Thus, federation as a form, the organizational side of the state reflects the statics in state relations, and federalism reflects the dynamics of intrastate relations in a federal state. At the same time, the main thing in the characterization of federalism is not the understanding of the territorial component of the state, but precisely federal relations, that is, the interconnections of the various subjects of these relations. Not being identical, the concepts of "federation" and "federalism" are nevertheless inseparable unity (at least from a purely legal point of view): a federation is unthinkable without federal relations, and federal relations are possible only in a federal state.

It is difficult to draw a clear, insurmountable line between federalism and unitarism. Decentralization of power is inherent not only in a federal, but also in a unitary state, while the degree of autonomy of the constituent parts of some unitary states (regions of Italy, autonomous communities of Spain, the Palestinian Autonomy in Israel, the Republic of Karakalpakstan in Uzbekistan, etc.) may be greater than the degree of autonomy of the constituent parts of certain federal states. states (for example, states in India). Therefore, the essential feature of federalism is not the degree of autonomy of the constituent parts of the state, but the special nature of federal relations, which by definition are impossible in a unitary state, regardless of the scope of rights granted to its territorial units.

Federal states are necessarily characterized by the presence of two levels of state power, and in federal relations the main ones are relations regarding the distribution and exercise of state power. In the exercise of state power, as well as in federal relations in general, there is necessarily an element of agreement (not in the literal legal sense "agreement"), a combination of cooperation and subordination. If in a unitary state power is divided "from above" and also, "from above", at any moment the power and autonomy granted to the constituent parts of the state can be taken away or changed, then in a federal state it is impossible to make such decisions of the central government unilaterally, participation in adoption of such decisions by the subjects of the federation.

10.2. Origins and formation of federalism in Russia

Federalism in Russia is in its infancy. This is due to the fact that Russia does not have its own experience of genuine federal relations: for most of its history, Russia de jure (until 1918) or de facto (during the Soviet period) was a unitary state. Nevertheless, there were elements of federalism in Russia.

The ideas of self-government were enshrined in Russkaya Pravda, the Novgorod and Pskov Judicial Charters, the Sudebniks of 1497 and 1550, the Cathedral Code of 1649, the acts of Peter I, etc. In the process of expanding the Russian Empire, the peoples and territories that were part of Russia (principalities, khanates, kingdoms, provinces, etc.) retained the possibility of self-government and a fairly wide degree of autonomy.

The constitutional drafts of the Decembrists already contain formalized ideas and concepts of a federation (“a republic of a multinational federation of Slavic and some neighboring states of Central and Southern Europe”, “a constitutional monarchy consisting of federal territories”, etc.).

Aggravation of national relations in Russia in the late XIX - early XX century. predetermines the expansion of the anti-imperial movement, the emergence of various platforms of political parties and the expansion of the idea of ​​transition to a federation with the creation of regional and national autonomies.

The Bolsheviks, who came to power in 1917, had a negative attitude towards the federation (“...federation is harmful, federation contradicts the principles of social democracy as applied to Russian reality...”), however, the course of history quickly changed their views, and it was precisely when Soviet power (in 1918) Russia became a de jure federal state for the first time. The transition to federalism was seen as the only way to stop the collapse of the former Russian Empire.

The Russian Federation was originally not contractual or constitutionally contractual (like the federation of the USSR), but constitutional in nature: the federation in Russia was proclaimed, established, and was not the result of a voluntary unification of various territories and peoples. In January 1918, the III All-Russian Congress of Soviets adopted the Declaration of the Rights of the Working and Exploited People, which established Russia as a federation of Soviet national republics. Later, the federal form of the territorial structure was enshrined in the Constitution of 1918 and in all subsequent Russian constitutions. The subjects of the federation in the Soviet period of development were only republics (including autonomous republics), although it was envisaged that the federation would have separate territories (autonomous regions, autonomous districts) with a special national composition, way of life, traditions, which also took part in the work of federal authorities . It is noteworthy that according to the Constitutions of the USSR of 1937 and 1977. autonomous republics of the RSFSR had a direct fixed representation in one of the chambers - the Council of Nationalities of the Supreme Soviet of the USSR. Thus, representatives of most of the constituent parts of the RSFSR (krais and regions) were excluded from participation in solving federal issues. The number, composition, names of the autonomous republics of Russia have repeatedly (often arbitrarily) changed.

Early 1990s in the history of Russian federalism it is noted as the so-called "parade of sovereignties". The 1990 Declaration on State Sovereignty of the RSFSR confirmed the need for a significant expansion of the rights of the autonomous republics. In 1991, four of the five autonomous regions (Adygei, Gorno-Altai, Karachay-Cherkess and Khakass), which were part of the territories, proclaimed themselves republics; The Jewish Autonomous Region, retaining its name, withdrew from the Khabarovsk Territory; The Chukotka Autonomous Okrug in 1992 withdrew from the Magadan Region; there were projects for the formation of new republics on the basis of certain territories, regions (Urals, Far East, etc.).

After the collapse of the USSR in 1991, the collapse of the Russian Federation also became real. To a large extent, it was prevented by the 1992 Federal Treaty. This Treaty was actually a synthesis of three treaties on the delimitation of jurisdiction and powers between the federal center and groups of subjects of the federation: first, the republics; secondly, the territories, regions, cities of federal significance; thirdly, the autonomous region and autonomous regions. The federative treaty was included as an integral part of the Constitution of the Russian Federation of 1978, which predetermined its legal force, significance and place in the legal system of the state. However, the Federal Treaty could not resolve all the negative trends in Russian intra-federal relations, primarily because it fixed the inequality of various subjects of the federation, and this could not satisfy the representatives of most of the subjects - territories and regions. In addition, not all regions signed the Treaty, in particular, Tatarstan, the Chechen-Ingush Republic, many subjects of the Russian Federation signed it with reservations. At present, the Federal Treaty has not been legally canceled, references to it are contained in the current Constitution of the Russian Federation, however, its meaning and place in the legal system have fundamentally changed: in accordance with Part 1 of Sec. 2 "Final and Transitional Provisions" of the Constitution of the Russian Federation, the provisions of the Treaty are valid to the extent that they do not contradict the Constitution of the Russian Federation. Thus, most of the provisions of the Federal Treaty are not actually in force today, and this Treaty has become not so much a valid legal act as a historical document.

Further development of federal relations in Russia is carried out on the basis of the Constitution of the Russian Federation of 1993.

10.3. Constitutional principles of Russian federalism

The federal structure of Russia is devoted to Ch. 3 of the Constitution of the Russian Federation, however, the fundamental principles of the federal structure are enshrined in Art. 4 and 5 ch. 1 "Fundamentals of the constitutional system", which predetermines their significance and immutability in the existence of the current Constitution of the Russian Federation. Most of the enshrined principles underlie the constitutional and legal status of the Russian Federation.

The Constitution of the Russian Federation establishes the following principles of the federal structure of Russia.

state integrity. This principle means, in particular, the unity of the territory of the Russian Federation, the extension of the sovereignty of the Russian Federation to the entire territory, a single economic space, a single legal space, etc.

▪ Unity of the system of state power. This unity is manifested in the unity of the nature of power (source, goals of activity), uniformity in the institutional organization of power at the federal and regional levels, hierarchy and interaction of various government bodies, etc.

▪ Equality and self-determination of peoples in the Russian Federation and the resulting equality of subjects of the Russian Federation. The term “peoples” used in Part 5 of Article XNUMX of the Constitution of the Russian Federation can be interpreted in two meanings: firstly, as representatives of a certain ethnic group living in various constituent parts of Russia (Chechen people, Tatar people, peoples of the Finno-Ugric group, Belarusian diaspora, Azerbaijani diaspora, Germans, Karaites, etc.); secondly, as the entire population living in a certain territory without ethnic, national coloring (the people of Dagestan, the people of the Samara region, residents of Moscow, etc.). In any case, the principle of self-determination of peoples cannot be interpreted as the right of any territory to secede from the Russian Federation: the Constitution directly speaks of the self-determination of peoples in the Russian Federation, therefore, peoples, implementing this principle, can, in particular, change the status of a subject of the Russian Federation on the territory which they live, unite with another subject of the Russian Federation or disunite into several territories, create national-cultural autonomy, etc., but, firstly, within the existing borders of the Russian Federation and, secondly, without encroaching on the foundations of the constitutional system of Russia ( form of government, economic system, ideological, spiritual foundations, etc.). The fundamental novelty of Russian constitutionalism is the provision that all subjects of the Russian Federation (republics, territories, regions, federal cities, autonomous regions and autonomous districts) are equal in rights and have the same legal status.

▪ Delimitation of jurisdiction and powers between government bodies of the Russian Federation and government bodies of the constituent entities of the Russian Federation (between federal and regional government bodies). The measure of division of power between the center and the constituent parts of the state, as noted, is one of the main features of a federal structure. It was this issue that turned out to be key in the formation of Russian federalism, and it needs to be considered in more detail.

When it comes to the delimitation of powers between the federal center and the constituent parts of the state, the terms "delimitation of subjects of jurisdiction" and "delimitation of powers (competencies)" are used. Sometimes these concepts are used as identical, which is not quite accurate. The subjects of jurisdiction (of the Russian Federation, its constituent entities, joint jurisdiction, municipalities) are understood as the spheres of public relations in which the relevant public authorities (local governments) carry out legal regulation, and under the powers - the rights and obligations of the relevant public authority, by which it endowed with the implementation of tasks and functions on the subjects of relevant jurisdiction. Competence is the totality of all the powers of a public authority (local government) in the relevant subject matter. Powers, like competence, are a property that is inherent only to a state body, local government or official.

The fundamental principles of the delimitation of powers between the federal center and the subjects of the Russian Federation are enshrined in the Constitution of the Russian Federation, and the details are contained in the Federal Law of 06.10.1999 No. 184-FZ "On the General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation" with amendments . and additional

The delimitation of the subjects of jurisdiction and power is possible in two main ways: normative (constitutional, statutory, legislative) and contractual. At the same time, the contractual method of delimitation is not opposed to the constitutional one, it is not "unconstitutional" and should be applied only within the framework of the current Constitution of the Russian Federation. The difference between these methods lies only in the fact that with the normative method, power is assigned to the relevant subject directly in the normative act (the Constitution of the Russian Federation, the constitution (charter) of the subject of the Russian Federation, federal or regional law), and with the contractual method - in the contract (agreement). It is possible to use any one of these methods, as well as their combinations.

The Constitution of the Russian Federation, proceeding from the principle of three spheres of authority, which is most common in the practice of federal states, establishes:

1) subjects of exclusive jurisdiction of the Russian Federation;

2) subjects of joint jurisdiction (the sphere of the so-called coinciding, competing competence);

3) subjects of own jurisdiction of the subjects of the Russian Federation.

The list of subjects of jurisdiction of the Russian Federation is defined in Art. 71 of the Constitution of the Russian Federation as closed and, therefore, not subject to broad interpretation. The basic criterion for attributing the list of issues to the jurisdiction of the Russian Federation (as in most federal states) is the assignment of rights to it, which together ensure the implementation of state sovereignty, the unity of human and civil rights and freedoms, and a unified state policy. The list of subjects of joint jurisdiction, as well as the list of subjects of jurisdiction of the Russian Federation, is closed under the Constitution of the Russian Federation (Article 72). The list of subjects of jurisdiction of the Russian Federation and joint jurisdiction, as a rule, is reproduced in the constitutions and charters of the constituent entities of the Russian Federation. The subjects of jurisdiction of the constituent entities of the Russian Federation are not clearly defined in the federal Constitution, the Constitution of the Russian Federation establishes only certain areas of legal regulation of the constituent entities of the Russian Federation: the establishment of a system of state authorities (part 2 of article 11; part 1 of article 77), the adoption of constitutions, charters (part 1 of article 2). 66, 2, article 68), the establishment of the state languages ​​of the republics (part 73 of article XNUMX), etc. Therefore, according to the residual principle, this includes all those issues that are not included in the first two areas (article XNUMX of the Constitution of the Russian Federation), and this This means that the scope of legal regulation of the constituent entities of the Russian Federation is quite wide.

The Constitution of the Russian Federation also establishes a hierarchy of normative acts of the Russian Federation and the constituent entities of the Russian Federation: in the subjects of joint jurisdiction, the supremacy has a federal law, and in the subjects of the jurisdiction of the constituent entities of the Russian Federation, normative legal acts of the constituent entities of the Russian Federation have priority over federal laws (parts 5, 6 of article 76 of the Constitution of the Russian Federation ). The priority of federal acts in the sphere of the exclusive jurisdiction of the Russian Federation is obvious, since in this area regional acts, as a general rule, should not be issued (part 1 of article 76). It should be borne in mind that not only federal laws can be adopted on subjects of joint jurisdiction of the Russian Federation and its subjects (such a conclusion may arise based on the literal interpretation of part 2 of article 76 of the Constitution of the Russian Federation), but also federal regulatory legal acts of a by-law nature ( decrees of the President of the Russian Federation, resolutions of the Government of the Russian Federation, departmental acts). The legal position on this issue was expressed by the Constitutional Court of the Russian Federation in Resolutions of 09.01.1998 No. 1-P "On the case of checking the constitutionality of the Forest Code of the Russian Federation" and of 27.01.1999 No. 1-P "On the case of the interpretation of Articles "), 71 (part 76) and 1 (part 112) of the Constitution of the Russian Federation".

The ratio of federal and regional legislation on the subjects of joint jurisdiction in Art. 76 (parts 2 and 5) of the Constitution of the Russian Federation is defined as follows: in these areas of public relations, both federal laws and other federal legal acts, and laws and other regulatory legal acts of the constituent entities of the Russian Federation can be adopted. However, the latter must be adopted in accordance with federal laws, but in the event of a conflict between a federal law and a regulatory legal act of a constituent entity of the Russian Federation, the federal law applies.

The absence of a federal law on issues of joint jurisdiction of the Russian Federation and its constituent entities is not an obstacle to the settlement of this issue by a constituent entity of the Russian Federation. However, the possibility of advanced legal regulation in the subject of the Russian Federation is very limited. Firstly, the constitutional prescription on the need for regulatory legal acts of the constituent entities of the Russian Federation to comply with the federal law also implies bringing the legal act of the constituent entity of the Russian Federation into line with the federal law adopted later. Secondly, the Federal Law "On the General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation" after the introduction of amendments and additions on July 4, 2003 contains a closed list of powers of state authorities of the subjects on subjects of joint jurisdiction that they can carry out independently.

The contractual way of delimiting power vertically in a federal state should be considered as an auxiliary one, since in all major areas of social relations the subjects of jurisdiction and powers should be delineated normatively.

In the late 1990s in Russia, the "parade of sovereignties" grew into a "parade of concluding agreements", for the constituent entities of the Russian Federation it became "not prestigious" not to conclude an agreement with the center. The contractual process during this period rightly caused ambiguous assessment and anxiety, since the norms of concluded contracts invaded the sphere of federal constitutional and legislative regulation, the contractual model of the Russian Federation ("contract law") began to be actually approved. By the spring of 1999, 42 agreements had already been concluded with state authorities in 46 constituent entities of the Russian Federation and more than 250 specific agreements to them. The subjects of the Russian Federation that signed the agreements occupied most of the country's territory, more than 50% of the population lived in them, and more than 60% of Russia's economic potential was concentrated. At the same time, most of the agreements signed at that time between the federal state authorities and the state authorities of the subjects of the Russian Federation changed the scheme for delimiting the subjects of jurisdiction between the Russian Federation and its subjects, established in the Constitution of the Russian Federation.

The strengthening of the vertical of state power in Russia contributed to the fact that by the end of 1999 the conclusion of new agreements was suspended, and since 2002 the process of termination of the agreements concluded by agreement of the parties began (at present, most of the agreements concluded have been canceled).

The current legislation has also changed the procedure for implementing the contractual method of delimiting the subjects of jurisdiction and powers between federal and regional government bodies. The federal law "On the General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation", firstly, establishes a subject limiter, i.e., the subject of the contract can only be specific powers of federal and regional government bodies, due solely to economic , geographical and other features of the constituent entity of the Russian Federation and to the extent that these features define other than that established in federal laws, the division of powers (the subject of agreements between federal and regional executive authorities can only be the delegation of part of the available powers). Secondly, the Law establishes a time limiter, i.e. the contract (agreement) cannot be unlimited, the deadline for the contract is ten years with the possibility of early termination (termination) both by agreement of the parties and by a court decision. Thirdly, the Law consolidates the concept of a non-self-executing contract in intra-federal relations, which predetermines the complication of the procedure for concluding and entering into force of contracts and agreements - contracts are subject to preliminary (before the signing of the contract by the President of the Russian Federation and the head of the region) approval in the legislative body of the subject of the Russian Federation and approval of the signed contract by the federal by law. Thus, such agreements can be called bilateral with a high degree of conventionality, since in essence there is an agreed (prevailing) will of dozens of subjects of the legislative process, including all subjects of the Russian Federation. Agreements between federal and regional executive authorities come into force after they are approved by resolutions of the Government of the Russian Federation. Such a procedure will make it possible to exclude provisions from contracts and agreements that violate the principle of equality of subjects of the Russian Federation (public authorities of any subject of the Russian Federation have the right, at their request, to receive a draft contract or agreement and express their suggestions and comments).

For contracts and agreements concluded earlier and currently in force, it is established that if they are not approved by federal law or a decree of the Government of the Russian Federation, respectively, by July 8, 2005, they will cease to be valid.

With the delimitation of powers between the center and the regions, the normative meaning of concluding agreements is largely lost. The main purpose of intrastate (as well as intraregional) treaties and agreements is to concretize, clarify, delegate normatively delimited powers of authority with the unconditional priority of the normative way of separating power along the vertical.

Topic 11. Composition of the federation in Russia and the constitutional and legal status of the Russian Federation and its constituent entities

The Russian Federation consists exclusively of subjects of the federation; unlike many federal states, it does not include territories that are not subjects of the federation (the capital district, federal territories or possessions, associated states, etc.); various intrastate formations (federal districts, interregional associations of economic interaction, free economic zones, closed administrative-territorial formations, associations and unions of municipalities, etc.) are not subjects of the federation.

The composition of the Russian Federation is constitutionally enshrined in Part 1 of Art. 65 of the Basic Law, which names all 89 of its subjects: 21 republics, 6 territories, 49 regions, 2 federal cities, 1 autonomous region and 10 autonomous okrugs. However, the constitutionally established composition of the federation in Russia can be changed, and the Constitution of the Russian Federation provides for the possibility of such a change:

a) in connection with a change (increase) in the territory of the Russian Federation (the possibility of secession, i.e., the exit of any subject from the Russian Federation, the Constitution of the Russian Federation does not directly allow);

b) within existing boundaries. In the first case, we are talking about the admission of a new subject to the Russian Federation (Part 2 of Article 65). A change in the composition of the Russian Federation within its existing borders is possible due to two circumstances:

1) in connection with the formation of a new subject of the Russian Federation within Russia (part 2 of article 65);

2) in connection with a change in status by any subject. In accordance with the Constitution of the Russian Federation, all subjects of the Russian Federation, regardless of belonging to one or another type, are equal, however, the Basic Law directly provides for the possibility of changing the status of a subject of the Russian Federation (part 5 of article 66), therefore, a change in the status of a subject of the Russian Federation entails a change in the composition of the Russian Federation with the previous quantitative set of subjects of the Russian Federation.

The conditions and procedure for all options for changing the composition of the Russian Federation must be regulated at the level of a federal constitutional law. In particular, in the development of the constitutional provisions, the Federal Constitutional Law No. 17.12.2001-FKZ of December 6, XNUMX "On the procedure for admission to the Russian Federation and formation of a new subject of the Russian Federation" was adopted.

Admission to the Russian Federation of a new subject of the Russian Federation. In order to eliminate the legal vacuum, the corresponding mechanism should be fixed, although the possibility of admitting a new subject to the Russian Federation seems to be generally hypothetical. At the same time, such a situation cannot be completely ruled out: the integration processes with Belarus, in particular, give rise, among other things, to the proposal to unite Russia and Belarus into one state by gradually incorporating Belarusian regions into Russia, starting from the east; requests were made, which find support among a number of Russian politicians, for the annexation of Abkhazia, South Ossetia, Transnistria, Crimea, etc. to Russia.

Admission to Russia of a new subject of the Russian Federation is possible only on a voluntary basis, while both a foreign state and its part can be admitted to the Russian Federation. Such a decision, formalized by the adoption of a special federal constitutional law, should be based, among other things, on an international treaty with a given state, concluded exclusively at the initiative of the latter. In order to gradually integrate the new entity into the economic, financial, credit and legal systems of the Russian Federation, as well as into the system of public authorities, a transitional period may be established by an international treaty.

The exercise of the powers of the President of the Russian Federation to conclude international treaties in this situation is preceded by the obligatory notification of both chambers of the Russian Parliament and the Government of the Russian Federation of the proposal to conclude an appropriate treaty and, if necessary, consultations with them, as well as an appeal to the Constitutional Court of the Russian Federation with a request to verify the constitutionality of the signed treaty. Ratification of the concluded international treaty (subject to a positive decision of the Constitutional Court of the Russian Federation) is carried out in the Federal Assembly simultaneously with the adoption of the federal constitutional law on the admission of a new subject to the Russian Federation, which determines the starting points of its status (name, boundaries, features and terms of the transition period and etc.).

The formation of a new subject within the Russian Federation seems to be a more realistic situation; in addition, the trend of enlargement of Russian regions has ceased to be predictable - in accordance with the Federal constitutional law of March 25.03.2004, 1 No. 1-FKZ, a new subject of the Russian Federation (Perm Territory) was formed as part of the Russian Federation as a result of the merger of the Perm Region and the Komi-Permyatsk Autonomous District a subject of the Russian Federation is considered to be formed from December 2005, 31, while from the date of the formation of the Perm Territory, a transitional period is provided (but not later than January 2007, 1990), during which the formation of state authorities of the Territory and the completion of the settlement of other issues). Similar (unifying) processes are beginning in relations between the Krasnoyarsk Territory and its constituent Taimyr and Evenk Autonomous Okrugs, the Irkutsk Region and the Ust-Orda Buryat Autonomous Okrug. Proposals were made to merge several constituent entities of the Russian Federation into one (Moscow and the Moscow region, St. territories - the Amur, Magadan, Kamchatka and Sakhalin regions, the Khabarovsk and Primorsky territories and the Jewish Autonomous Region - into one Far Eastern province), on the formation of the Ural Republic on the basis of the Sverdlovsk, Chelyabinsk and Kurgan regions, on the return of the Jewish Autonomous Region to the Khabarovsk Territory, which came out from its composition in the early XNUMXs, etc.

At present, the law fixes the mechanism for the formation of a new subject of the Russian Federation only as a result of the merger of two or more subjects of the Russian Federation bordering on each other. At the same time, the formation of a new subject of the Russian Federation may entail the cessation of the existence of all or individual merging subjects of the Russian Federation, i.e., situations of the so-called absorption by one subject of another, joining one to another, are possible.

The formation of a new subject within the Russian Federation is possible only on a voluntary basis, at the initiative of the interested subjects of the Russian Federation (i.e., the subjects on whose territory a new subject is formed), manifested exclusively through regional referendums in these subjects of the Russian Federation. The corresponding proposal is sent to the President of the Russian Federation, who notifies the chambers of the Federal Assembly of the Russian Federation and the Government of the Russian Federation about it and, if necessary, consults with them.

The formation of a new subject of the Russian Federation within the Russian Federation is formalized by the adoption of a special federal constitutional law, the draft of which is submitted to the State Duma by the President of the Russian Federation in the event of positive results of referendums in all interested subjects of the Russian Federation. If the results of the referendum in at least one subject turn out to be negative, then a second referendum on this issue in all regions is possible no earlier than in a year. In such a law, along with the general principles of the status of a new subject of the Russian Federation, issues of a transitional nature are also defined: succession, settlement of property relations (including changes to the law on the federal budget), the functioning of various state authorities, the validity of previously adopted legal acts, etc. Changing the status a subject of the Russian Federation is also possible on the basis of the procedure provided for by the federal constitutional law (part 5 of article 66 of the Constitution of the Russian Federation). However, such a law has not yet been adopted, although the need for its adoption is obvious: the actual differences in the legal status of the subjects of the Russian Federation suggest the possibility (and often the desire) to change (primarily increase) their status by some subjects of the Russian Federation (the transformation of the Kaliningrad region into the Baltic Republic, the Sverdlovsk region into the Ural Republic, the Jewish Autonomous Region to the Jewish (Birobidzhan) Region, etc.)

In all cases of changes in the composition of the Russian Federation, changes must be made to Art. 65 of the Constitution of the Russian Federation on the basis of the relevant federal constitutional law (Article 137 of the Constitution). But changes to this article can also be made with the composition of the Russian Federation unchanged - when one or another subject of the Russian Federation changes its name. Similar changes to Art. 65 of the Constitution of the Russian Federation have already been introduced: since 1996 they changed their names, in particular, the Republic of Ingushetia, the Republic of Kalmykia, the Republic of North Ossetia - Alania, the Chuvash Republic - Chuvashia, the Khanty-Mansi Autonomous Okrug - Yugra. The inclusion in such cases of a new name of the subject of the Russian Federation in Part 1 of Art. 65 of the Constitution of the Russian Federation by decree of the President of the Russian Federation on the basis of a decision of the state authorities of the relevant subject does not mean a change in the status of the subject of the Russian Federation and the composition of the Russian Federation.

11.2. Fundamentals of the constitutional and legal status of the Russian Federation and its subjects

In characterizing Russian federalism, it is important to clarify the status of the main subjects of federal relations: the Russian Federation as a whole and the subjects of the Russian Federation as components of the whole.

The principles of Russian federalism predetermine the foundations of the constitutional and legal status of the Russian Federation, the main elements of which are:

▪ federal constituent power;

▪ state sovereignty;

▪ territorial supremacy of Russia (in this case, the territory of the Russian Federation has not only internal, state-legal, but also international legal significance, includes not only the territories of all subjects of the Russian Federation, but also such spaces as the territorial sea, internal waters, airspace) ;

▪ unified federal citizenship;

▪ state language;

▪ federal budget, federal state property, unified customs, monetary, credit and tax systems;

▪ unified legal system;

▪ the system of federal government bodies, a unified judicial system and a system of prosecutors;

▪ common foreign policy, membership in interstate associations;

▪ unified Armed Forces;

▪ constitutional consolidation of the subjects of exclusive jurisdiction of the Russian Federation;

▪ the presence of state symbols of Russia: coat of arms, anthem, flag, capital.

Thus, the status of the Russian Federation includes the most important features of its federal statehood. It is characterized primarily by the fact that the Russian Federation is a sovereign state, a full-fledged subject of the international community, possessing full state power throughout its territory, with the exception of those powers that, in accordance with the federal Constitution, are administered by the subjects of the Russian Federation.

For any federal state, it is extremely important to achieve harmony in relations between parts (subjects of the federation) and the whole (the federation itself). Most of the world's federations are symmetrical in terms of the status of their constituent parts, that is, they consist of subjects of the same order. In some federal states, the subjects of the federation have a different scope of powers - asymmetric federations. From a legal point of view, there are no absolutely symmetrical federations, and in all federal states certain elements of asymmetry take place.

In accordance with Part 1 of Art. 5 of the Constitution of the Russian Federation, the subjects of the Russian Federation are republics, territories, regions, cities of federal significance, an autonomous region and autonomous districts. A literal interpretation of this norm allows us to conclude that the symmetrical nature of the federation is enshrined in the Constitution of the Russian Federation. Moreover, the constitutional text contains a number of provisions on the equality of subjects of the Russian Federation (parts 1 and 4 of article 5, part 2 of article 72, article 77, etc.).

Since all subjects of the Russian Federation are state entities, the general principles of their constitutional and legal status are consonant with the main elements of the status of the Russian Federation:

▪ own system of state power, including constituent power (the independence of regions in this area is not unlimited, state power bodies of the constituent entities of the Russian Federation are an integral part of the unified system of state power of Russia);

▪ own legal system (but being an integral part of the legal system of the Russian Federation);

▪ own subjects of competence (along with the opportunity to participate in solving federal issues);

▪ own territory (but only land; borders between constituent entities of the Russian Federation can be changed by their mutual consent, but with the approval of this decision by the Federation Council);

▪ their property, budget, system of regional taxes and fees (but within the framework of federal regulation of the fundamentals of property relations);

▪ participation in international and foreign economic relations, the right to cooperate with each other (but with the participation or under the control of the federal center, in particular the relations of the constituent entities of the Russian Federation with foreign states or their constituent parts are regulated by Federal Law dated January 04.01.99, 4 No. XNUMX-FZ “On coordination international and foreign economic relations of the constituent entities of the Russian Federation");

▪ own state symbols (but used along with the state symbols of the Russian Federation).

When characterizing the common elements of the constitutional and legal status of the constituent entities of the Russian Federation, it is necessary to bear in mind the following. Firstly, the set of these components is not normatively fixed, and different approaches are possible in different sources; secondly, not all elements of the status of the Russian Federation can be automatically “projected” onto the status of a constituent entity of the Russian Federation (in particular, the possession of state sovereignty, the presence of its own Armed Forces, systems of certain state bodies, etc.; all constituent entities of the Russian Federation are an integral part of the Russian Federation, and since the sovereignty of the Russian Federation extends to its entire territory, it is impossible for any other sovereign entities to exist within the Russian Federation; state sovereignty is indivisible, and there cannot be two sovereigns on one territory); thirdly, in determining the content of their status, the subjects of the Russian Federation are not completely free and independent, and they are bound primarily by the provisions of the foundations of the constitutional order of Russia, which are the same for the entire state and can only be changed through the adoption of a new Constitution of the Russian Federation.

Despite the indisputable presence of common features in the characterization of the legal status of the subjects of the Russian Federation and the equality of the subjects of the Russian Federation, there are certain differences in both individual groups of subjects of the Russian Federation and individual subjects of the Russian Federation, regardless of belonging to a particular group. Even some norms of the Constitution of the Russian Federation and other federal legal acts make it possible to speak of a de facto asymmetric federation in Russia. So, part 2 of Art. 5 of the Constitution of the Russian Federation defines the status of republics as states that have their own constitution, unlike other subjects of the Russian Federation; Part 2 Art. 68 gives the republics the right to establish their state languages, although there are many more national languages ​​in the Russian Federation than there are 21 republics in Russia; the basic laws of the republics (constitutions), in contrast to the charters of other subjects of the Russian Federation, can be adopted by holding republican referendums (parts 1 and 2 of article 66 of the Constitution of the Russian Federation, subparagraph "a", paragraph 1 of article 5 of the Federal Law of 06.10.1999 No. 184-FZ "On the General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation"); Part 3 Art. 66 enables the autonomous region and autonomous districts to have a special nominal federal law on the corresponding autonomy.

In the educational and scientific literature, all subjects of the Russian Federation are traditionally divided into three main groups: republics (states); territories, regions, cities of federal significance (territorial formations); national-territorial formations (autonomous region and autonomous regions). This also gives reason to talk about differences in their legal status. And the very constitutional possibility of a subject of the Russian Federation changing its status (part 5 of article 66) implies differences in the status of individual regions. All such provisions, internal contradictions of Russian legislation provide grounds for substantiating the different status of the constituent parts of Russia, primarily the republics, in comparison with other subjects of the Russian Federation.

Thus, the status of a subject of the Russian Federation includes not only the traditional set of rights and obligations, but also belonging to a certain type of subjects. At the same time, the status of a subject of the Russian Federation includes all the rights fixed not only in the Constitution of the Russian Federation, but also in other legal acts.

The status of individual subjects of the Russian Federation may also be specified in federal laws and other legal acts. Examples include Law of the Russian Federation No. 15.04.1993-4802 dated April 1, XNUMX "On the status of the capital of the Russian Federation", federal laws on special economic zones (in the Kaliningrad, Magadan regions, etc.), resolutions of the Government of the Russian Federation on federal target programs of economic, social , cultural development of individual regions, etc.

The characteristic of the constitutional and legal status of such subjects of the Russian Federation as autonomous regions has certain features. The main one is that all autonomous okrugs, with the exception of Chukotka, are part of the territory or region (the Chukotka Autonomous Okrug in 1992, in compliance with constitutional procedures, withdrew from the Magadan Region and, in accordance with the law, is directly part of the Russian federation). Such subjects of the Russian Federation are called "complex", "compound", "complex", "matryoshka", etc. predetermines the specifics of the status of 16 Russian regions (more than 1/5 of all subjects of the Russian Federation). It turns out that one entity with equal rights is a part of another, equally equal (and hence the problems of territory, the formation of state authorities, rule-making, relationships with each other and with the federal center, etc.) arise.

Consideration of the status of complex constituent entities of the Russian Federation is impossible without taking into account the legal position contained in the Decree of the Constitutional Court of the Russian Federation of July 14.07.1997, 12 No. 4-P "On the case of the interpretation of the provision contained in part 66 of Article XNUMX of the Constitution of the Russian Federation on the inclusion of the Autonomous Okrug into the territory, region" .

The Constitutional Court, in particular, pointed out that the inclusion of an Autonomous Okrug into a Krai, Oblast means that the Krai, Oblast has a single territory and population, the constituent parts of which are the territory and population of the Autonomous Okrug, as well as state authorities whose powers extend to the territory of autonomous districts in cases and within the limits provided for by federal law, charters of the relevant subjects of the Russian Federation and agreements between their state authorities. Inclusion of the territory of an autonomous okrug into the territory of a krai or oblast does not mean that the autonomous okrug loses its territory and that it is absorbed by the krai or oblast (although the autonomous okrug is a constituent entity of the Russian Federation and is at the same time an integral, albeit a special, part of the krai or oblast). It's just a matter of different levels of power.

The inclusion of an autonomous okrug in a krai, oblast also means recognition of the population of the okrug as an integral part of the population of the krai, oblast, and this predetermines the right of the population of the autonomous okrug to participate in the formation of state authorities of the krai, region and the corresponding obligation of the state authorities of the okrug to ensure the implementation of this right.

The state of inclusion of an autonomous okrug into a krai or oblast determines the peculiarities of the status of not only the okrug, but also the krai and oblasts that it belongs to. Such an entry in no way detracts from the status of the Autonomous Okrug as an equal subject of the Russian Federation (in particular, it does not infringe on its ability to participate in the contractual process with other subjects of the Russian Federation, as well as with the federal center), does not make it dependent on the territory, region; moreover, such a state gives rise to the obligation of both parties to build their relations (including relations with other subjects of the Russian Federation and the federal authorities) taking into account the interests of each other.

An analysis of the constitutional and legal status of the constituent entities of the Russian Federation from the point of view of their equality is impossible without taking into account two fundamental provisions. First, "equality" is not "full rights". The constitutional possibility of concluding agreements between the Russian Federation and its subjects does not equalize the subjects of these agreements. There cannot be an agreement between the Russian Federation and its subject as a state with equal rights (all the more so since the Constitution allows for the possibility of concluding agreements between state authorities of the Russian Federation and its subjects). A part of the whole cannot be equal to this whole, let alone prevail over it. The constituent entities of the Russian Federation are not equal in rights with Russia, but among themselves and in relations with federal government bodies.

Secondly, in the Constitution of the Russian Federation we are talking about equality, but not about the equality of the subjects of the Russian Federation, about equality in rights, but not about actual equality. Just as the citizens of the state cannot be actually equal (although they are all equal, legally equal), so the constituent parts of the state cannot be actually equal (even at the same specific level). The subjects of the Russian Federation are not equal in size of territory, population, national composition, economic potential, etc. (in particular, Moscow accounts for 0,3% of the territory, but almost 10% of the population of the Russian Federation, more than 1/3 of federal budget revenues) . Nevertheless, it is quite obvious that in a single federal state, all subjects of the Russian Federation should have equal rights, equal opportunities in exercising the political, socio-economic and other rights of their peoples and each individual. And this equality should be manifested mainly in relations with the state authorities of the Russian Federation, in granting the subjects of the same scope of rights and powers in the subjects of their jurisdiction and the joint jurisdiction of the Russian Federation and the constituent entities of the Russian Federation.

The tendency to equalize the status of the constituent entities of the Russian Federation has become one of the obvious, manifested trends in intra-federal relations in modern Russia.

Topic 12. Organization of state power in the constituent entities of the Russian Federation

One of the elements of the constitutional and legal status of the constituent entities of the Russian Federation is the presence of their own system of state authorities.

The independence of the subjects of the Russian Federation implies that they independently determine the types (system) of organs, their competence, the relationship between them, etc. However, the independence of the subjects of the Russian Federation in this matter is significantly limited. They are connected, firstly, by the norms-principles of the foundations of the constitutional system of the Russian Federation and, secondly, by the rather strict norms of the Federal Law of October 06.10.99, 184 No. "with rev. and additional, as well as the norms of other federal laws.

The obligation of the constituent entities of the Russian Federation to establish their systems of state authorities in accordance with the fundamentals of the constitutional order of the Russian Federation, in particular, means that when establishing such a system and its normative consolidation, the regions should proceed from the ideas of a democratic federal legal state with a republican form of government (part 1 of Art. .1 of the Constitution of the Russian Federation); the priority of human and civil rights and freedoms, the social nature of the state (art. 2, 7); definitions of the people as the only source of power in the region (art. 3); recognition of the sovereignty of the Russian Federation throughout its territory (including the territories of the constituent entities of the Russian Federation), the supremacy of the Constitution of the Russian Federation and federal laws on its territory, the state integrity of Russia, the unity of the system of state power, the delineation of jurisdiction and powers between state authorities of the Russian Federation and their own state authorities, equality of all subjects of the Russian Federation (Article 4, Part 3, 4 Article 5, Part 3 Article 11, Article 15); unity of citizenship in the Russian Federation (Article 6); the need to exercise state power on the basis of its division into legislative, executive and judicial, ensuring the independence of the bodies of each of the branches (Article 10); autonomy within their powers of local self-government bodies and guarantees of their rights (Article 12); recognition of the ideological diversity and secular nature of the state (art. 13, 14).

State power in all subjects of the Russian Federation is organized on the basis of the principle of separation of powers, which involves not only the distribution of power between the bodies of various branches of state power, but also the mutual balancing of the branches of power, the impossibility for any of them to subjugate others, the exclusion of the concentration of all powers or more their parts are under the jurisdiction of one state authority or official.

The system of public authorities of the constituent entity of the Russian Federation in general terms includes:

1) legislative (representative) body of state power;

2) the highest official of the constituent entity of the Russian Federation (head of the region);

3) the highest executive body of state power;

4) other public authorities.

Territorial bodies of federal state authorities (executive, judicial) functioning on the territory of a constituent entity of the Russian Federation are not included in the system of state authorities of a constituent entity of the Russian Federation.

The legislative body of state power in the subject of the Russian Federation is one (the highest and only). It is permanent, although some deputies may work on a non-permanent basis. The name of the legislative body is determined by the subject of the Russian Federation independently - it can be a council (state, supreme, regional, etc.), an assembly (state, legislative, popular, etc.), a duma (regional, regional, district, city, provincial, state), khural, suglan, parliament, etc. The quantitative composition of the legislative bodies of the constituent entities of the Russian Federation can vary significantly from, for example, 15 to several hundred deputies (recently, there has been a tendency to reduce the number of parliaments of the constituent entities of the Russian Federation, for example, in Tatarstan, Bashkortostan, Chuvashia, Kabardino-Balkaria, etc., Chuvashia, Kabardino-Balkaria, etc.). The structure of regional parliaments is mainly unicameral, but there are also bicameral (bicameral) legislative bodies (at the regional level - in Bashkortostan, Kabardino-Balkaria, etc. - there is also a tendency to abandon bicameralism).

In bicameral parliaments, one of the chambers (usually called the upper one) is formed, as a rule, from representatives of the territorial units of the constituent entity of the Russian Federation, and, unlike the other (lower) chamber, deviations from the principle of equal representation are possible here. However, in this case, the powers of the chambers must be balanced in such a way that the decisions of the lower house, which directly represents the population of the region (formed by elections in constituencies with an approximately equal number of voters), are not blocked by the upper house, which is formed without ensuring equal representation (from the territories).

The legislative bodies of the constituent entities of the Russian Federation are formed exclusively through the election of deputies by the population of the region, while at least 50% of the deputies of parliament (or one of its chambers) must be elected according to the proportional electoral system (according to party lists), but on condition that regional branches of at least three political parties. The term of office of regional parliaments cannot exceed five years. In some subjects of the Russian Federation, rotation (renewal) of part of the composition is provided for after a certain period of time after the election. The powers of the legislative body of the subject of the Russian Federation are quite broad and are aimed at the implementation of its main functions: representation, legislative and control.

In contrast to the legislative power, the executive power in the subject of the Russian Federation is exercised by a system of bodies, including the highest executive body of state power (government, administration) and other executive bodies (ministries, departments, committees, administrations, etc.). The system of executive bodies of state power is established by the law of the subject of the Russian Federation, and their structure in accordance with the constitution (charter) of the subject of the Russian Federation and the specified law is determined by the head of the region. In contrast to the federal scheme of the institutional organization of state power, the highest official of a constituent entity of the Russian Federation (head of a region) is unambiguously defined as the head (head) of the highest executive body of state power of the corresponding subject.

After amendments were made to the federal law "On the General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation" in December 2004 (Federal Law No. 11.12.2004-FZ of December 159, 5), the status of the highest official of a constituent entity of the Russian Federation has changed significantly. Now he is not elected by the population of the region, but is empowered by the legislative body of the constituent entity of the Russian Federation on the proposal of the President of the Russian Federation for a period of up to 27.12.2004 years (at the same time, the prohibition to hold the position of head of the region for the same person for more than two terms in a row is excluded). The procedure for considering candidates for the position of the highest official (head of the highest executive body of state power) of a constituent entity of the Russian Federation is established by Decree of the President of the Russian Federation dated December 1603, XNUMX No. XNUMX. and in some situations - twice) rejection by the regional parliament of the candidates (nominated candidate) presented by the head of state, the President of the Russian Federation has the right to dissolve the legislative body of the constituent entity of the Russian Federation and appoint an interim top official of the region by his decree.

The supreme executive body of a subject of the Russian Federation is formed by the head of the region, but the legislation of the subject of the Russian Federation may establish the need to obtain consent to the appointment of certain officials of the parliament of the subject of the Russian Federation. However, a situation in which the entire composition of the regional government is formed with the participation of the legislature is unacceptable. The powers of the highest executive body of state power of the constituent entity of the Russian Federation are traditional based on the fact that it is a body of general competence and manages all the main spheres of life at the regional level.

Speaking about the organization of the judiciary in the constituent entities of the Russian Federation, it is necessary to keep in mind the following. Actually, the courts of the constituent entities of the Russian Federation are only constitutional (charter) courts and justices of the peace. Based on the fact that magistrates (who are judges of general jurisdiction of the constituent entities of the Russian Federation) are deprived of the opportunity to participate in resolving public law disputes (they consider only certain categories of criminal and civil cases), only constitutional (charter) ones participate in the implementation of the principle of separation of powers at the regional level. courts that have not yet been created in all subjects of the Russian Federation. In those constituent entities of the Russian Federation where there are no constitutional (statutory) courts of their own, the balance of power is ensured by federal courts operating on the territory of these constituent entities, whose jurisdiction includes, among other things, the resolution of disputes of a public law nature with the participation of regional state authorities.

The system of state authorities of a constituent entity of the Russian Federation may include other bodies. In particular, supra-parliamentary bodies have been established in certain subjects of the Russian Federation, for example, the Great Khural in Tyva, the Constitutional Assembly in Dagestan. In some constituent entities of the Russian Federation, state authorities are provided at a level below the regional level: in districts, cities, etc. The Constitutional Court of the Russian Federation recognized the admissibility of the creation of such state authorities, but with the obligatory observance of a number of conditions, namely: these bodies cannot be subordinated to regional to state authorities, they must be formed through elections by the population of the relevant territory and have their own powers, they cannot be vested with the powers of local governments, as well as delegate their powers to these bodies: only the legislator can delegate state powers, and there is only one legislative body in the constituent entity of the Russian Federation, since the representative bodies of state power of the territorial units of the constituent entity of the Russian Federation are not legislative bodies. Dagestan has a collegial body of executive power - the State Council, which functions along with the government of the republic. In some constituent entities of the Russian Federation, state bodies are being created that are difficult to attribute to any traditional branch of power (the State Control Committee in Bashkortostan, the Committee on National Relations in Kabardino-Balkaria, the Council of Governors in the Tyumen Region, conciliation chambers, etc.).

12.2. The main directions and forms of interaction between public authorities of the constituent entities of the Russian Federation

The main thing in characterizing the principle of separation of powers is not the normative consolidation of this principle and the status of state authorities, but the relationship of these bodies with each other, the correlation of their powers, the existence of a system of "checks and balances", mechanisms for resolving disputes and conflicts between them.

The main areas of interaction between regional government bodies are:

▪ mutual participation in the formation and early termination of powers;

▪ interaction in the rule-making process.

After amendments were made to the Federal Law "On the General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation" in December 2004, the legislative body of the constituent entity of the Russian Federation empowers the highest official of the region (recall that the relevant legally significant decision is made by the regional parliament exclusively according to the candidates submitted by the President of the Russian Federation; in addition, the head of a constituent entity of the Russian Federation (as a temporarily acting senior official) can be appointed by the head of state and contrary to the opinion of the legislative body of the constituent entity of the Russian Federation). The oath of the newly empowered head of the region is always taken in the presence of members of parliament. The legislative body of a constituent entity of the Russian Federation not only establishes a system of executive bodies of state power in the region, but also takes part in the formation of the personal composition of the supreme executive body of the constituent entity of the Russian Federation, giving consent to the head of the region to appoint a certain circle of officials (the list of such officials should be established directly in the constitution ( charter) of the subject of the Russian Federation). Judges of the constitutional (charter) court of a constituent entity of the Russian Federation (if it is created in a region) are also appointed by the regional parliament.

The most effective element in the system of “checks and balances” at the regional level is the ability of the legislative body and the highest official of a constituent entity of the Russian Federation to mutually influence the early termination of each other’s powers. After the noted changes in the Law “On General Principles...” the balance in this element of the system of “checks and balances” is somewhat upset. If the head of a region retains the right to dissolve parliament, then the latter does not have a similar opportunity in relation to the highest official - the final decision on the early termination of powers by the head of a subject of the Russian Federation is made by the President of the Russian Federation (the exception is the possibility of the legislative body making a decision on the early termination of powers by the head of a region in cases his voluntary resignation, recognition by the court as incompetent or partially capable, missing or declared dead, the entry into force of a court conviction, leaving the Russian Federation for permanent residence or loss of Russian citizenship; however, even in such situations, a largely formal decision by the regional Parliament can only be adopted upon the proposal of the President of the Russian Federation).

The basis for issuing a decree (decree) of the head of a constituent entity of the Russian Federation on the dissolution of a regional parliament may be the adoption by the parliament of a constitution (charter), a law or other regulatory legal act that contradicts the Constitution of the Russian Federation, federal laws or the constitution (charter) of a constituent entity of the Russian Federation (mandatory additional conditions here are - the establishment of the corresponding contradiction exclusively in court; the contradiction is not to any federal law, but only to the one adopted on the subjects of the jurisdiction of the Russian Federation and the subjects of joint jurisdiction of the Russian Federation and its subjects; not eliminating the contradiction within 6 months from the date of entry into force of the court decision). In case of early termination of the powers of the legislative body, extraordinary elections are scheduled so that they take place no later than 120 days from the date of entry into force of the decree (decree) of the head of the subject of the Russian Federation. (Thus, the highest official of a constituent entity of the Russian Federation can determine the date of elections to the regional parliament, as an exception to the general rule, according to which this date is determined by a resolution of the parliament itself).

Without the ability to make an independent final decision on the early termination of the powers of the highest official of a constituent entity of the Russian Federation, the legislative body of the region is still empowered to express no confidence in him, which is one of the grounds for the possible removal of the head of the region by the President of the Russian Federation. The grounds for expressing such distrust may be: firstly, the publication by the head of the region of acts that contradict the Constitution of the Russian Federation, the constitution (charter) and the laws of the subject of the Russian Federation; secondly, another gross violation of federal or regional legislation; thirdly, improper performance by the highest official of a constituent entity of the Russian Federation of his duties. The first two circumstances must be established exclusively in court; in addition, in the first case, the head of the region must not respond to the court’s decision within a month, and in the second, there must be a massive violation of the rights and freedoms of citizens. If one of the above circumstances exists, a group of at least 1/3 of the established number of parliamentary deputies has the right to initiate a vote of no confidence; the decision on no confidence is made by a qualified majority of 2/3 of the votes of the established number of deputies (if the parliament is bicameral - 2/3 of each chamber). A positive decision of parliament is sent to the President of the Russian Federation for consideration to resolve the issue of removing the highest official from office. The removal from office of the head of a region entails the resignation of the highest executive body of state power of the constituent entity of the Russian Federation.

The legislative body of a subject of the Russian Federation can express no confidence not only in the head of the region, but also in those officials of the highest executive body in whose appointment it took part (by approving or coordinating the appointment), which entails their immediate resignation.

The interaction of the legislative and executive authorities at the regional level in the rule-making process is manifested in the following:

▪ the head of a subject of the Russian Federation has the right of legislative initiative, and his bills (upon his proposal) are subject to consideration as a matter of priority;

▪ the head of the region signs and promulgates regional laws adopted by parliament, having the right of suspensive veto, which can be overridden by parliament by adopting the law in the previous wording by a qualified majority of 2/3 votes;

▪ the legislative body, on the one hand, and the head of the region and executive authorities, on the other, exchange published legal acts with the possibility of making proposals for amending or repealing them, as well as appealing in court;

▪ heads of regional executive authorities (or their authorized persons) have the right to attend meetings of the legislative body with the right of an advisory vote, and deputies (or employees of the apparatus on behalf of the legislative body or its chairman) have the right to attend meetings of executive authorities.

The interaction of regional government bodies is also possible in other areas, for example, the appointment of a human rights ombudsman of a constituent entity of the Russian Federation, the coordination of legislative initiatives to the State Duma, etc.

12.3. The relationship between federal and regional government bodies

The participation of the constituent entities of the Russian Federation in solving federal issues is manifested in the following:

▪ the upper house of the federal parliament - the Federation Council - is the chamber of regions, in which all subjects of the Russian Federation are represented on a parity basis;

▪ subjects of the Russian Federation have representation in other federal bodies (under the Government of the Russian Federation, under certain federal executive bodies, in the State Council of the Russian Federation, in the Council of Judges, in the Council of Legislators, etc.);

▪ subjects of the Russian Federation take part in the preparation of international treaties of the Russian Federation (if the treaty affects the interests of subjects of the Russian Federation);

▪ subjects of the Russian Federation participate in the federal rule-making process, firstly, through the Federation Council when approving any federal laws; secondly, through the implementation of the right of legislative initiative in the federal parliament; thirdly, through participation in procedures for the approval of federal regulations (federal laws, government regulations) on subjects of joint jurisdiction (for example, draft federal laws on subjects of joint jurisdiction after their submission to the State Duma and after their adoption by the State Duma in the first reading in a mandatory manner order are sent to regional government bodies for their submission within 30 days of reviews of bills (in the first case) and amendments to these bills (in the second case), and if the reviews of the highest government bodies of more than 1/3 of the constituent entities of the Russian Federation turn out to be negative, then a conciliation commission must be created, and before the expiration of the 30-day period allotted to regional parliaments for submitting amendments to bills adopted in the first reading to the State Duma, consideration of these bills in the second reading is not allowed). The main areas of federal influence are:

▪ control over the activities of state authorities of the constituent entities of the Russian Federation (it is carried out by the President of the Russian Federation, the Constitutional Court of the Russian Federation and other federal courts, the Commissioner for Human Rights in the Russian Federation, prosecutors, the Ministry of Justice of the Russian Federation, etc.);

▪ introduction of a state of emergency on the territory of individual constituent entities of the Russian Federation with corresponding consequences;

▪ introduction of direct federal rule in certain regions (as was the case in the Chechen Republic);

▪ early termination of the powers of public authorities of the constituent entities of the Russian Federation as elements of the system of “checks and balances” in the functioning of state power in the “vertical” aspect (in particular, the dissolution by the President of the Russian Federation of the legislative body of the constituent entity of the Russian Federation in the event of double or triple rejection of the proposed candidates (proposed candidacy) for the position of head of the region);

▪ application of liability measures to government bodies of constituent entities of the Russian Federation for violation of federal legislation.

State authorities of constituent entities of the Russian Federation may be liable not only to the population of their region (in particular, in the form of recalling a deputy of a legislative (representative) body to another state authority of this subject within the framework of a system of "checks and balances" (expression of no confidence in the head of the region and some other officials of the highest executive body of state power by the legislature and the early termination of the powers of the latter by an act of the head of the subject of the Russian Federation), but also before the federal state authorities on their initiative for violating federal law. In the latter case, we are talking about the dissolution of the legislative body of the subject of the Russian Federation and removal from office The procedure for applying these measures of responsibility is quite complicated, and so far they have not been applied in the practice of federal relations in Russia.

The basis for the dissolution of the legislative (representative) body of state power of a constituent entity of the Russian Federation is a complex legal structure, including the following elements:

1) the adoption by the regional parliament of a constitution (charter), a law or other regulatory legal act that contradicts the Constitution of the Russian Federation, federal constitutional laws or federal laws (but not federal acts of a by-law nature and not the constitution (charter) of a constituent entity of the Russian Federation);

2) the establishment of such a contradiction exclusively in court (despite the jurisdictional and procedural possibility of courts of general jurisdiction not only to establish, but also to eliminate such contradictions, in accordance with the legal position of the Constitutional Court of the Russian Federation, set out in Resolution No. case on the verification of the constitutionality of certain provisions of the Federal Law "On the General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation", as an obligatory prerequisite for the dissolution of the legislative body of a constituent entity of the Russian Federation should be the conduct of appropriate procedures in the order of constitutional proceedings, therefore, an obligatory element of the the legal composition is the decision of the Constitutional Court of the Russian Federation on the existence of a legal conflict between regional and federal legislation);

3) the expiration of a six-month period after the entry into force of the court decision, if the legislative body did not comply with the court decision within this period, in particular, did not cancel the unconstitutional (illegal) act or did not amend it;

4) mandatory establishment (also in court) of the fact that as a result of evading the execution of a court decision, obstacles have been created for the exercise of the powers of federal state authorities or local self-government bodies enshrined in federal law, or the rights and freedoms of a person and a citizen or the rights and legitimate interests of legal entities have been violated; persons.

The absence of one of the elements of this composition makes it impossible to apply the procedure for the dissolution of the regional parliament.

After that, the regional parliament is given a three-month period to eliminate the contradiction of its act with federal legislation. After this period, the President of the Russian Federation has the right to dissolve the legislative body of the subject of the Russian Federation (previously, the dissolution of the regional parliament could only be the result of the adoption and entry into force of a special federal law on the dissolution of a specific legislative body). And only the entry into force of the federal law entails the early termination of the powers of the legislature of the region. In the event of early termination of the powers of the legislative body of a constituent entity of the Russian Federation, early elections are scheduled to be held no later than 120 days after the entry into force of the federal law.

The basis for the dismissal of the head of a subject of the Russian Federation from office by the President of the Russian Federation is a composition that includes the following elements:

1) publication by the head of the region of a regulatory legal act that contradicts the Constitution of the Russian Federation, federal constitutional laws or federal laws;

2) establishing the fact of a contradiction in court or suspending the act of the executive authority of the constituent entity of the Russian Federation by decree of the President of the Russian Federation in accordance with Part 2 of Art. 85 of the Constitution of the Russian Federation;

3) the expiration of a two-month period from the date of entry into force of a court decision or the issuance of a decree of the President of the Russian Federation, during which the head of the region has not eliminated the contradiction. In case of suspension of the action of regional acts of executive authorities by the President of the Russian Federation, the head of the region has the right to apply to the appropriate court to resolve the dispute; however, the two-month period is not restrictive and the withdrawal procedure cannot be applied.

If there is such grounds, the President of the Russian Federation shall issue a warning to the head of the subject of the Russian Federation within a period not exceeding six months from the date of entry into force of the court decision or the publication of the decree of the President of the Russian Federation on the suspension of the regional act of the executive authority. If, within a month after the issuance of the warning, the head of the region does not eliminate the contradiction between regional acts of the executive branch and federal legislation, the President of the Russian Federation dismisses him from office. The decree of the President of the Russian Federation on dismissal (as well as on temporary suspension from the performance of duties on the proposal of the Prosecutor General of the Russian Federation in the event of criminal prosecution of the head of the region) is brought to the attention of the legislative body of the subject of the Russian Federation, and the head of the region, whose powers have been terminated or suspended, has the right to appeal against the issued decree in Supreme Court of the Russian Federation. In addition, the President of the Russian Federation has the right to dismiss the highest official of a constituent entity of the Russian Federation from office due to the loss of confidence of the head of state, as well as for improper performance of his duties (there is no clear procedure for these situations, and the decision on dismissal is made by the President of the Russian Federation at his own discretion) . Despite the fact that the procedure for dismissal of the head of a constituent entity of the Russian Federation is much simpler than the procedure for the dissolution of the legislature of the region (on the basis, terms, proper procedural aspects), it has not yet been applied in any of the constituent entities of the Russian Federation.

Topic 13. Institutions of direct democracy

Democracy in the Russian Federation can be exercised in two main forms: direct and indirect. The first, so-called direct, immediate, democracy includes:

▪ direct elections;

▪ referendum;

▪ recall of a deputy of a representative body of power and an elected official (not provided for at the federal level);

▪ people's legislative (law-making) initiative (possible only at the regional and local levels);

▪ forms of direct implementation by the population of local self-government (meetings of citizens, meetings and conferences of citizens, public hearings, etc.), etc.

An indirect form of democracy (representative democracy) is associated with the exercise of power through elected representatives, state authorities and local governments (including individual ones).

The highest direct expression of the power of the people is the referendum and free elections. It must be borne in mind here that, firstly, a hierarchy of forms of direct democracy has been established, their division into higher and others, and secondly, there is no gradation within the higher forms of democracy: a referendum and free elections are equally the highest forms of exercising power by the people .

13.1. General characteristics of suffrage

Democratic elections have long become a ubiquitous phenomenon, a common practice for most states (the age of this institution, in essence, coincides with the age of parliamentarism). Elections are one of the most common phenomena of public life in general: governing bodies of legal entities, educational groups, religious communities, leaders of informal groups, territorial public self-government bodies (houses, street committees, etc.), etc. are elected. Therefore, it is clear that elections are considered as a constitutional and legal institution associated with the formation of various public authorities.

Elections are a form of direct expression of the will of citizens, carried out in accordance with federal and regional legislation, charters of municipalities in order to form state authorities, local governments or empower officials.

Classification of elections in Russia can be carried out according to the following criteria:

a) depending on the territory in which the elections are held:

▪ universal (all-Russian, national);

▪ regional;

▪ local (municipal);

b) depending on the formed body (election of an official):

▪ elections of collegial public authorities (parliamentary, elections of representative bodies of local self-government);

▪ elections of individual public authorities and officials (presidential, gubernatorial, elections of heads of administrations, justices of the peace, etc.);

c) depending on the method of expression of the will of voters:

▪ direct - when the attitude towards the candidate is expressed directly;

▪ indirect - when there is an intermediate link between voters and the candidate (for example, members of the Federation Council - representatives of the legislative bodies of the constituent entities of the Russian Federation are elected at meetings of these bodies; elections of chairmen of regional parliaments, as a rule, are carried out by deputies of the corresponding parliaments; elections of heads of municipalities are often carried out by deputies of representative local government bodies, etc.);

d) depending on the duration:

▪ next;

▪ extraordinary (in connection with the early termination of the powers of a government body or an elected official);

▪ repeated (in connection with the recognition of regular or early elections as invalid);

e) depending on the scale of the elections (number of mandates of the representative body to be replaced):

▪ full (when renewed, the entire composition of the representative body is elected);

▪ partial (additional) - carried out to replace part of the mandates (for example, if rotation of part of the composition of the representative body is provided, if as a result of the elections, deputy mandates remained unfilled, if a vacancy of a deputy mandate appears, etc.);

f) depending on the number of registered candidates:

▪ alternative;

▪ no alternative.

The concept of elections (in a broad sense, as a constitutional legal institution) is often identified with the concept of suffrage, which can be defined as an institution of constitutional law, a set of legal norms that regulate the process of electing candidates to representative bodies of power and elected positions.

In the institution of electoral law, groups of legal norms can be distinguished that regulate the following issues:

▪ basic principles of electoral law;

▪ requirements for voters and candidates (active and passive suffrage);

▪ status of election commissions and other subjects of the electoral process (political parties, electoral associations and blocs, observers, etc.);

▪ the procedure for the formation of electoral districts ("electoral geography", "electoral geometry");

▪ the procedure for conducting election campaigns and financing the election campaign;

▪ voting procedure;

▪ procedure for determining election results;

▪ procedure for appealing violations and challenging election results.

In the Russian Federation, electoral legislation is not codified: in Russia there is no electoral code (at the federal level), as in some other states or individual constituent entities of the Russian Federation (Bashkortostan, Altai Territory, Belgorod, Voronezh, Kostroma, Sverdlovsk regions, etc.), electoral law norms are contained in the Constitution of the Russian Federation and numerous federal, regional and municipal laws and other legal acts. At the same time, the fundamental provisions that are mandatory when holding elections at any level throughout Russia are contained in the Federal Law of June 12.06.2002, 67 No. XNUMX-FZ “On the Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of Citizens of the Russian Federation,” as amended. and additional At the same time, most of the electoral norms provided for by Russian legislation correspond to generally recognized, fairly unified provisions of the electoral law of foreign countries.

So, as the main principles for holding elections and a referendum, Russian legislation fixes:

▪ participation of Russian citizens in elections on the basis of universal, equal and direct suffrage (expression of will) by secret ballot;

▪ mandatory and periodicity of elections;

▪ free and voluntary participation in elections and referendums;

▪ preservation of voting rights when Russian citizens live outside the territory of Russia;

▪ transparency in the activities of election commissions and referendum commissions at all levels;

▪ independence of election commissions and referendum commissions, inadmissibility of interference in their activities by other public authorities, officials, organizations and citizens;

▪ inadmissibility (as a general rule) of participation in the electoral process of foreign states, organizations and citizens, as well as stateless persons.

All citizens of the Russian Federation, regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, have an active electoral right (the right to elect to state authorities and local governments) and the right to vote in a referendum. belonging to public associations and other circumstances who have reached the age of 18 (on the day of voting) and reside in the territory of the electoral district.

The requirements for passive suffrage (the right to be elected to public authorities and local governments) are not so unified, they depend on the type (level) of the formed body (elected official), regional characteristics and other factors. But in any case, the minimum age of a candidate, established by law, is 21 years old on the day of voting in elections to the legislative (representative) body of state power of a constituent entity of the Russian Federation and to local governments and 30 years old - in the elections of the head of the region, and setting the maximum age of a candidate is not allowed .

Restrictions on passive suffrage may be associated with a ban on holding certain elective positions for more than two consecutive terms, the inability to hold other positions in the state or municipal service, engage in other paid activities, except for scientific, pedagogical and other creative activities (the principle of incompatibility), and other conditions. Traditionally, in Russia, citizens who have been declared incompetent by a court or are held in places of deprivation of liberty by a court verdict do not have the right to elect and be elected, participate in a referendum. In addition, citizens are deprived of their passive electoral right in respect of whom there is a court decision that has entered into force depriving them of the right to hold state and (or) municipal positions for a certain period (such a sanction is provided for by the Criminal Code of the Russian Federation).

To determine the results of elections in the Russian Federation, all major electoral systems are used: majoritarian, proportional and mixed. The essence of the majoritarian electoral system is that of several candidates, the candidate who receives the most votes in the elections wins. At the same time, two varieties of the majoritarian electoral system are used in Russia: the elections of some deputies of representative bodies of state power in many constituent entities of the Russian Federation are carried out according to the majoritarian electoral system of relative majority (to win, it is enough for a candidate to receive a simple majority of votes compared to other candidates), and the elections of the President of the Russian Federation, heads of many municipalities are carried out according to the majoritarian electoral system of an absolute majority - here a simple majority of votes is not enough to win the elections, you need to get at least 50% plus one vote (if none of the candidates gains an absolute majority in the first round of elections, then a second round is held, in which the two best candidates go).

When using a proportional electoral system, deputy mandates in a representative body are distributed depending on the number of votes cast by voters for a particular list of candidates (this system is not applicable to elections of officials). Obviously, the use of this electoral system in its pure form presupposes the presence in the state of a developed party system, strong and authoritative political parties.

The most common in the Russian Federation is a mixed electoral system. Thus, one half of the deputies of the State Duma of the Federal Assembly of the Russian Federation are elected by the majoritarian electoral system of a relative majority, and the other half by the proportional electoral system (the presidential bill on the transition to the election of deputies of the State Duma exclusively by the proportional electoral system is currently being considered). A mixed electoral system should become predominant in the elections of representative bodies of state power of the constituent entities of the Russian Federation: in accordance with Federal Law No. 12.06.2002-FZ of June 67, 14, after July 2003, XNUMX, at least half of the deputy mandates in these bodies (or in one of the chambers, if the regional parliament is bicameral) should be replaced by a proportional electoral system (with the exception of the constituent entities of the Russian Federation, on the territory of which regional branches of less than three political parties are registered).

Author: Nekrasov S.I.

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Latest news of science and technology, new electronics:

Artificial leather for touch emulation 15.04.2024

In a modern technology world where distance is becoming increasingly commonplace, maintaining connection and a sense of closeness is important. Recent developments in artificial skin by German scientists from Saarland University represent a new era in virtual interactions. German researchers from Saarland University have developed ultra-thin films that can transmit the sensation of touch over a distance. This cutting-edge technology provides new opportunities for virtual communication, especially for those who find themselves far from their loved ones. The ultra-thin films developed by the researchers, just 50 micrometers thick, can be integrated into textiles and worn like a second skin. These films act as sensors that recognize tactile signals from mom or dad, and as actuators that transmit these movements to the baby. Parents' touch to the fabric activates sensors that react to pressure and deform the ultra-thin film. This ... >>

Petgugu Global cat litter 15.04.2024

Taking care of pets can often be a challenge, especially when it comes to keeping your home clean. A new interesting solution from the Petgugu Global startup has been presented, which will make life easier for cat owners and help them keep their home perfectly clean and tidy. Startup Petgugu Global has unveiled a unique cat toilet that can automatically flush feces, keeping your home clean and fresh. This innovative device is equipped with various smart sensors that monitor your pet's toilet activity and activate to automatically clean after use. The device connects to the sewer system and ensures efficient waste removal without the need for intervention from the owner. Additionally, the toilet has a large flushable storage capacity, making it ideal for multi-cat households. The Petgugu cat litter bowl is designed for use with water-soluble litters and offers a range of additional ... >>

The attractiveness of caring men 14.04.2024

The stereotype that women prefer "bad boys" has long been widespread. However, recent research conducted by British scientists from Monash University offers a new perspective on this issue. They looked at how women responded to men's emotional responsibility and willingness to help others. The study's findings could change our understanding of what makes men attractive to women. A study conducted by scientists from Monash University leads to new findings about men's attractiveness to women. In the experiment, women were shown photographs of men with brief stories about their behavior in various situations, including their reaction to an encounter with a homeless person. Some of the men ignored the homeless man, while others helped him, such as buying him food. A study found that men who showed empathy and kindness were more attractive to women compared to men who showed empathy and kindness. ... >>

Random news from the Archive Microchip MCP1631 PWM Modulators 17.11.2021 Microchip has developed high-speed PWM modulators that can turn most general-purpose microcontrollers into full-fledged switching power converter controllers with flexible functionality. Each of the microcircuits of the MCP1631 line contains a basic set of nodes used in modern PWM controllers, including a high-speed PWM modulator, MOSFET driver, amplifiers, comparators, as well as additional analog and digital elements that connect all components of the microcircuit into a single system. At the same time, high-level control of the converter, including the formation of the conversion frequency, setting the output voltage and output current, is carried out programmatically using a general-purpose microcontroller by generating and processing just a few signals. Chips MCP1631 and MCP1631HV are designed to create current regulators, while MCP1631V and MCP1631VHV are the basis for creating voltage regulators. The power section of the MCP1631 and MCP1631HV microcircuits can operate from primary power supplies with a voltage of 3,0 ... 5,5 V. For higher voltage applications, you should use the MCP1631HV or MCP1631VHV microcircuits, the input voltage operating range of which is extended to 16 V. At the same time, on-chip High-voltage versions of the MCP1631 chips (MCP1631HV and MCP1631VHV) have an additional LDO regulator with an output voltage of 3,3 or 5 V and a maximum output current of up to 250 mA, which can be used to power the microcontroller and other auxiliary nodes. Since all high-level functions are implemented in software, the application assignment of the same circuit can be easily changed by modifying the source code or by changing settings in non-volatile memory (if the software supports such a function). For example, the same charger can be easily reconfigured to work with lithium-ion, nickel-cadmium, nickel-metal hydride or lead-acid batteries, and the maximum number and capacity of cells is determined only by the capabilities of the power unit, and the voltage limit thresholds, values charging currents, as well as charge macroalgorithms are generated by software. In addition, the replacement of high-level software will allow, without any modification of the power part, to turn the charger into, for example, an LED driver with a customizable type and number of lamps. For the MCP1631 chips to work properly, external software must generate signals to set the output voltage, output current, and the frequency and duty cycle of the PWM signal to control the power transistor. If necessary, the microcontroller can also provide temperature control of power transistors or battery cells. The rest of the low-level functions, including surge protection, are handled by the nodes of the MCP1631 chips. Features of MCP1631 chips: the ability to create universal chargers with programmable settings for working with different types and numbers of battery cells; the possibility of creating converters with a switching frequency of up to 2 MHz; the ability to create power systems with intelligent functions (Intelligent Power Systems); the ability to create both current stabilizers (MCP1631, MCP1631HV) and voltage stabilizers (MCP1631V, MCP1631VHV) the ability to work with primary power supplies with voltage up to 16 V (MCP1631HV, MCP1631VHV); the presence of an additional LDO stabilizer with an output voltage of +3,3 or +5,0 V and an output current of up to 250 mA (MCP1631HV, MCP1631VHV); setting the switching frequency, maximum duty cycle, output voltage and output current using an external microcontroller; the presence of an error amplifier, as well as signal amplifiers generated by voltage and current sensors; presence of an overvoltage protection comparator; the presence of a protection unit against lowering the input voltage; the presence of an external MOSFET driver with an output current of up to 1 A; low current consumption in off mode (approximately 2,4 μA); the possibility of implementing temperature control (using a microcontroller); support for multiple package types: 20-pin TSSOP, SSOP (all versions), and 20-pin 4 x 4 mm QFN (MCP1631 and MCP1631V only). The main applications in which the MCP1631 family of chips can be used are: universal chargers that support different types of batteries; LED lighting and illumination systems; general-purpose pulse converters based on SEPIC topology; USB charging.

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