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Lecture notes, cheat sheets
Advocacy and notary office. Activities of a lawyer in constitutional proceedings (lecture notes)
Directory / Lecture notes, cheat sheets Table of contents (expand) LECTURE No. 12. Activities of a lawyer in constitutional proceedings 1. Participation of a lawyer in constitutional proceedings The Constitutional Court of the Russian Federation is a judicial body of constitutional control, independently and independently exercising judicial power through constitutional proceedings. The Constitutional Court of the Russian Federation is authorized to make decisions in plenary sessions if there are at least 2/3 of the total number of judges, and in a chamber session - if there are at least 3/4 of its composition. The importance of the tasks facing the Constitutional Court of the Russian Federation is emphasized by the fact that lawyers or persons with a degree in law are allowed as representatives of the parties. Considering the high complexity of constitutional judicial control, both from the substantive and procedural points of view, the recognition of highly professional qualities for lawyers is of great importance for strengthening the role of the bar in protecting the rights and freedoms of citizens. Constitutional jurisprudence has a number of features: 1) The Constitutional Court is engaged in establishing the actual circumstances of the case only to the extent that they can affect the assessment of the constitutionality of the challenged law or its individual provisions. Therefore, the task of a lawyer in this matter is reduced to bringing a convincing legal and scientific argumentation of his position, to trying to help the court find the best scientifically based solution. In this case, the choice of tactics for defending the interests of the client is very limited. Here, the ability to model the situation and find a solution strictly justified by law is most valuable; 2) the constitutional process, unlike other types of processes, is rather fleeting. There is only one instance. Decisions of the Constitutional Court of the Russian Federation are final and not subject to appeal or protest. And therefore, the lawyer is deprived of the opportunity to leave any arguments for the future or subsequently supplement them with something, it is necessary to state everything to the court at once; 3) the Constitutional Court of the Russian Federation does not have a prescribed procedure for the execution of its decisions, i.e. there is no mechanism for forcing state bodies and their officials to comply with these decisions if they do not voluntarily obey it. There are frequent cases of repeated appeals to the Constitutional Court of the Russian Federation on the same issue, since the first decision was not implemented by anyone; 4) the protection of constitutional rights and freedoms in the constitutional process is realized not only through upholding the rights of a particular person, but in the form of protecting the rights and freedoms of all persons in relation to whom the contested legal act can be applied, i.e. public interests are always protected. At the stage of preparing the case for hearing the lawyer needs to choose a variant of the position on the case, select arguments to substantiate it, determine the circle of possible witnesses, specialists, experts to be summoned to court, determine the list of documents that will need to be found and submitted to the court. If during the sessions of the Constitutional Court of the Russian Federation the applicant or lawyer needs additional witnesses or documents, then he has the right to file a petition to call them or demand documents. The petition must be motivated, then the court, as a rule, satisfies it, since task of the Constitutional Court of the Russian Federation - establish the truth on the disputed issue. The lawyer needs to make sure that there are no circumstances preventing the consideration of the case in the Constitutional Court. Thus, the issue may not be within the jurisdiction of the Constitutional Court of the Russian Federation (Clause 1, Part 2, Article 40 of the Federal Code of Law of July 21, 1994 No. 1 - Federal Law on the Constitutional Court of the Russian Federation). If this is obvious, then the secretariat will notify the applicant of the refusal to accept the case for consideration. If the circumstances are not obvious, but are present, then the court itself makes a decision on this issue. It is also necessary to check whether a similar issue has not been considered before by the Constitutional Court. If the final decision was considered and made, then the Constitutional Court of the Russian Federation will refuse to accept the complaint, and if a similar case is already in production, it can merge them into one. The refusal to accept the case by the Constitutional Court of the Russian Federation does not preclude a repeated appeal to the court on the same issue, but only in the event of a significant change in circumstances. In the absence of circumstances preventing the consideration of the complaint in the Constitutional Court of the Russian Federation, the lawyer must make sure that the complaint is admissible and there are legal grounds for sending it to the Constitutional Court of the Russian Federation. In accordance with Part 2 of Art. 36 of the Law on the Constitutional Court of the Russian Federation, the basis for considering a case in constitutional justice is the revealed uncertainty as to whether the Constitution of the Russian Federation complies with a law or other legal act, an agreement between state authorities of the Federation and its subjects and other issues of consideration that are included in the concept of the Constitutional Court of the Russian Federation. The applicant and his lawyer must remember that, in accordance with Art. 37 of the Law on the Constitutional Court of the Russian Federation, it is necessary to indicate in the appeal the specific grounds for the appeal and your position on this issue. 2. Participation of a lawyer in a meeting of the Constitutional Court of the Russian Federation and in legal proceedings to clarify the decision Judicial proceedings in the Constitutional Court of the Russian Federation take place, as a rule, on the basis of competition (with the exception of cases on the interpretation of the Constitution of the Russian Federation). constitutional process no less tense and internally filled with conflicts than any other. Therefore, a lawyer must prepare carefully for the process, since the decision will apply not only to his client, but also to a large number of other people. At the court session it is necessary to strictly observe the Rules of the Constitutional Court. This applies both to addressing judges (“Your Honor”, “Dear Court”, “Dear Judge”, “Dear Presiding Officer”), and to the conduct of the case. A lawyer must take into account that in the Constitutional Court of the Russian Federation one cannot refer to documents and circumstances that were not examined by the Constitutional Court of the Russian Federation in a court session, one cannot make political statements, one cannot allow insulting statements in relation to state bodies and their officials, public associations and individual citizens. It needs to be made clear that Rules of the Constitutional Court of the Russian Federation prohibit judges interrupt someone's testimony with remarks or comments. If there are several representatives in the process, then a more experienced lawyer should take over the coordination functions. The roles of the participants must be defined in advance so that they can clearly state the facts and present documents in the required sequence. The lawyer must control the completeness of the coverage of the problem. An application for disqualification of a judge, which is possible at any stage, requires special delicacy. This part of the task is best taken on by a lawyer. It must be remembered that in the Constitutional Court of the Russian Federation it is impossible to express no confidence in the entire composition of the court. There is no other Constitutional Court in Russia. You can express no confidence only in some judge on the grounds strictly listed in the law. Unlike other courts, the Constitutional Court may have another reason - the participation of the judge in the adoption of the disputed act. In the constitutional process, there is a speech by the parties, a statement of petitions, a final speech by a lawyer. The difference is that after the final decision on the case has been made or a decision has been made to refuse to accept the issue for consideration, the lawyer can apply for an official clarification of the court act if its essence as a whole or individual provisions is not clear. As in any other process, the law provides the participants in the process with the right to get acquainted with the minutes and transcripts of the court session and bring their comments to it. The final and responsible stage of constitutional proceedings is the adoption of a decision by the Constitutional Court of the Russian Federation. Decisions made by the Constitutional Court of the Russian Federation are referred to as resolution, conclusion, definition. Resolutions are adopted on issues of resolving a case on compliance with the Constitution of the Russian Federation, federal laws, regulations of the President, the Federation Council, the State Duma, the Government; the constitutions of the republics; charters, as well as laws and other normative acts of the constituent entities of the Russian Federation; decisions on the interpretation of the Constitution of the Russian Federation and on a number of other fundamental issues within the competence of the Constitutional Court of the Russian Federation. Conclusion - this is the final decision of the Constitutional Court of the Russian Federation on the merits of the request for compliance with the established procedure for accusing the President of the Russian Federation of high treason or committing another serious crime. Definitions are all other decisions of the Constitutional Court of the Russian Federation adopted in the course of constitutional proceedings. The decision of the Constitutional Court of the Russian Federation is considered adopted if the majority of the judges participating in the voting voted for it, unless otherwise provided by federal constitutional law. Decisions of the Constitutional Court of the Russian Federation are proclaimed in full immediately after they are signed. Resolutions and opinions of the Constitutional Court of the Russian Federation not later than within two weeks from the date of their signing are sent: by the judges of the Constitutional Court of the Russian Federation, the parties, the President of the Russian Federation, the State Duma, the Government, the Commissioner for Human Rights, the Supreme Court, the Supreme Arbitration Court, the Prosecutor General, the Minister of Justice. The decision of the Constitutional Court of the Russian Federation is final, not subject to appeal and enters into force immediately after its announcement. Acts or separate provisions recognized as unconstitutional lose their force; recognized as inconsistent with the Constitution of the Russian Federation, international treaties of the Russian Federation that have not entered into force are not subject to entry into force and application (part 6 of article 125 of the Constitution of the Russian Federation). Author: Nevskaya M.A. << Back: Activities of a lawyer in arbitration proceedings (Participation of a lawyer in the arbitration process in the court of first instance. Participation of a representative in the appellate, cassation and supervisory instances of the arbitration process) >> Forward: Activities of a lawyer in administrative proceedings (Main areas of activity of a lawyer in administrative proceedings. Appealing decisions on an administrative offense)
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