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Abstract work
Constitutional value of freedom
As historical experience shows, problems of freedom of a person inevitably become the subject of scientific discussion and normative a regulation in the conditions of development of constitutional democracy. And domestic history is the bright example of it: in tsar Russia freedom became the slogan during revolutionary transformations at the beginning of the 20th century; the same slogan arose up in all post Soviet republics, trying to inculcate the ideas of modern constitutionalism in their political legal practice. Thus there appeared plenty of bright formulations and eye-catching epithets concerning the significance and meaningful of freedom, and at the same time sharp lack of its clear legal descriptions. So, the well-known Russian political figure B. Checherin wrote: “Only in the conditions of freedom energy of individual can show up in full. In freedom that is the main spring of human perfection, this law acts everywhere” [1]. At the same time it is well-known, how distant of freedom there was the Russian empire, to the end of the existence not knowing, what constitution is.
From this point of view It is extremely important, that the young independent states, appeared on the post Soviet space and being only at the beginning of the protracted way to the construction of free and democratic state, realized expressly, what freedom of a person is, what it should comprise and what responsibilities on the state should be allocated. Thus it should be remembered that the constitutional state is for most the legal state and the legal concept of freedom, suitable for application in law-enforcement activity, is required. For this purpose the definition of freedom should include legal constituents, should consist of legal categories. However this definition should “grow” from philosophical and sociological concepts should be their “projection on the legal plane”.
The concept of freedom of a person in the legal aspect was engendered in the ancient policies of Greece and Rome in V-VI ages B.C. in connection with the philosophical theories of Platon, Aristotle, Perikl, Demosthenes and other great thinkers of the that epoch about the value of law, with appearance of ideas of democracy and the principle of citizenship. The ancient citizenship is connected with many political aspects of freedom: personal freedom, equal right to the decision of state affairs and participating in legal proceedings, freedom of speech and etc However at that time the ideas of freedom did not get wide world distribution, as they conflicted with the foundations of the slave owning system The ancient man was fully “dissolved” in the family, community, policy; he was not considered as an independent value, but acted only as the means of providing of prosperity of the proper social communities. Freedom was frequently considered as the possibility of organization of life of a person and the state on the bases of reason despite blind fate. Freedom of a person was interpreted narrowly, as unstay in slavery. The possibility to act at own discretion was wretched: the person was influenced by religious dogmas, communal taboos, will of senior tribesmen, orders of bodies of power, own prejudices, defencelessness, sufficed before forces of nature and etc The state was recognized unlimited; and it was assumed that it can freely dispose of the person, life, property of a citizen; it could order a citizen certain beliefs and to determine storage of his home life. In particular case the power of the state over personality was great in ancient Sparta, and a little bit weaker in Athens, in other Greek states and in Rome. The law of Valery and Horace (449 B.C.) limited the arrest of the Roman citizen for debts and on other reasons; but it was a private measure, protecting plebeians against patricians, quite not erecting the personal freedom in principle. Even those thinkers of antiquities who especially vividly felt the lacks of the political system (for example, Platon) in the constructions of the ideal state in this regard did not at all overpeered above modern to them concepts and admitted for the state the possibility of substantial encroachment into the personal sphere. Exactly this (to great extent) explains the extreme lightness of transitions in the ancient states from the state of political freedom of a person (ancient democracies) to the state of the cruelest despotism (as, for example, epoch of Sulla in Ancient Rome).
Almost the millennium of early dark ages had to be passed, while the ideas of freedom began to sound in the feudal society on territory of the former Roman provinces - in England, Germany, France, and then - on the motherland of ancient philosophy, - in Italy.
In the philosophical-religious tradition of Middle Ages freedom is the inalienable description of God, it is ability of creation of the world “from nothing”, sent by good will. The person as the appearance and similarity of God in certain limits is provided with this ability. Interpretation of freedom in Christian medieval philosophy was fundamental for understanding of a person, his activity, mutual relations with God, people, nature. “Love God and do whatever you like” is the position of Augustine Beatific in a great deal was determining for the subsequent discussion of the problem of freedom. In spite of narrowness of conceptual approaches to the comprehension of freedom of a person, conditioned by hard scopes of Christian dogmas, the medieval politically legal idea served the powerful shove of development of the given problem, as it first paid attention to the separately taken person, having specified him from the general mass, saw the certain self value in him; it created substantial pre-conditions for liberalism and other materialistic conceptions of New time, developing with decomposition of scholastics.
In the conditions of sharp struggle between estates and the royal power, between enslaved and their enslavers the society more and more required limitation of tyranny of authorities at all levels: from national to local. The sanction of the problems and contradictions in this sphere gradually relocated in the sphere of jurisprudence that appears fully appropriate, taking into consideration the developing at the same time renaissance of ancient legal thought. The palm of championship in juridization of freedom of a person in all its displays legally belongs to England which is traditionally considered the motherland of modern constitutionalism. Thus it should be noted that the theory of basic rights and freedoms of a person and a citizen was initially intertwined in the general canvas of politically-legal transformations, becoming one of the bases of constitutionalism.
The brightest feature of “juridization” of liberty ideas was the adoption in 1215 of the great Charter of liberties (“Magna Charta”), which became the head stone of English freedom. The document read about granting of all free people of the Kingdom with different liberties (the prototype of modern basic freedoms), the idea of shielding a man from tyranny of officials, from any arbitrary extortions and fines is traced. The charter fixed the major politically legal ideas, directly touching the ideas of the time of freedom and justice, in particular recognition guilty only on the verdict of court and law, the right to free departure outside the Kingdom and returning, recognized the right to revolt “with the community of the whole land”, if the King does not observe the peace and liberties. The ideas, incorporated in this legal act, passed ahead time, they could not be fully realized at that period and afterwards were violated by many rulers. However, according to A.Ya. Azarov, it was the “border document which signified the turn of the state and public idea in England” [2].
In XIV-XVI centuries the revolutionary changes in the sphere of rights and freedoms of a person became weaker, that had been largely conditioned by geopolitical transformations in Europe; at that time attention of both leading representatives of politically-legal idea and wide circles of public was more concentrated on the questions of the sovereignty, institutional and political and territorial organization of the state power, more than on the legal position of the separately taken personality. Vividly speaking, at that time the problem of freedom of the state prevailed above the problem of freedom of an individual. According to one of the most authoritative historians of the 20th century G.L’Goff “the medieval person saw no sense in freedom in its modern understanding. For him freedom was the privilege, and this word was more frequently used in plural. Without community there was no freedom. It could be realized only in the state of dependence, in which the higher guaranteed lower respect of his rights. The free person is the person having the mighty promoter” [3].
However in the 17th century the situation changed radically. The transition from patrimonial to the national state objectively actualized the problem of the individual as the creator of politically legal history, as active participant of state transformations. The answer to the calls of the community development of that time was a number of fundamental politically legal documents and freedoms of a person. And again England was in the forefront of reforms.
In the history of England 17-18th centuries the most meaningful documents about rights of a person were the Petition of rights (1628), The Act about the better providing of freedom of a citizen and about warning of incarcerations beyond the seas (1679), The Bill of rights (1689), The Act about arrangement (1701), The Act about further limitation of the crown and the better providing of rights and liberties of a citizen (1701) and others. In particular, the Act about the better providing of freedom of a citizen and about warning of incarcerations beyond the seas fixed the concept of inviolability of the personality, which further strongly came in practice of both England and many other foreign states. The Bill of rights contained guarantees against excessive fines and cruel punishments. The act about further limitation of the crown contained positions, recognizing natural character of rights for people and laws of England, and obligation of execution of these laws by monarchs and observance of the rights. It is necessary to pay special attention to the fact that novelization of legislation on human rights took place in organic unity with development of the political legal theory about human rights. Importance of ideas, contained in the above mentioned laws is taken from the works of prominent thinkers of that epoch –J. Milton, T. Gobs, J. Lock. Foremost these are ideas of freedom, natural rights of a person, origin of the state from the free agreement of people.
Thus, t. Gobs gave the wide definition of freedom: “Freedom, according to the exact meaning of the word, is absence of external obstacles, which quite often can deprive the person of a part of his power to do what he would like, but can not prevent to use the left to the person power that is dictated to him by his judgement and reason” [4]. T. Gobs made another definition of individual freedom, - in its correlation with legal orders, - which became the classics of modern constitutionalism: “The most freedom of citizens results from silence of the law. Wherein the sovereign prescribed no rules, the citizen is free to do or not to do in obedience to the own discretion” [5]. This definition is one of the first legal definitions of individual freedom, as transforms the category of freedom in the plane of legal relationships. That is why it got wide encouragement among public figures and, as a result, it is reflected in many constitutionally-legal acts.
As for J. Lock, he considered freedom the natural right of a person who is not obliged to submit will and power of another man [6]. Understanding freedom as the human right to dispose of the actions, domains and property within the framework of laws, and not undergoing the despotic power of another man, J. Lock put the freedom of the civil society higher than freedom which political power disposes. According to him “association constantly saves sovereignty for its own rescue of attempts and projects of anyone, even the legislators, in those cases, when they appear so foolish or so evil-minded, to create and realized the plots against freedom and property of the citizen” [7].
Traditions of British liberalism in France were perceived and developed by Montesquieu. He considered that political freedom of a person is not to do what is desirable. In the society, in which the law acts the freedom is to do what should be wanted, and not to be compelled to do what should be wanted (according to the law) [8]. Therefore possessing political freedom according to him supposes the rule of laws, at which the citizen is not afraid of another citizen. According to him freedom meant the right to adhere own opinion on condition that the state should not impose on anybody the position. Montesquieu was one of the first who rigidly tied up the degree of providing of political freedom with the form of the state, foremost with its institutionally -functional organization. “If the legislative and executive powers are united in one person or establishment, - the French thinker wrote, - there will be no freedom, because it is possible to fear that the monarch or the senate will begin to create tyrannical laws in order to apply them tyrannically” [9]. Otherwise speaking Montesquieu differentiates political freedom, shown in the political system (and realized by means of division and mutual balancing of authorities), and political freedom, realized in sense of confidence of the citizen in own safety.
The ideas ofT.Gobbs, J.Lock, Montesquieu the same as of other prominent representatives of the European politically-legal idea of New time, were perceived by the leaders of the Great French revolution and distinctly showed up in the most prominent document of that epoch – The Declaration of human rights of a person and a citizen (1789). It, in particular, proclaimed: “Freedom consists of the possibility to do everything that does not harm another. Thus, realization of natural rights of each person meets those scopes which provide other members of the society enjoying the same rights only. These scopes can be determined solely by the law. A law can prohibit only acts, harmful for the society. However, that is not prohibited by the law, is permitted, and no one can be forced to the action, not ordered by the law” [10]. These positions for centuries ahead predetermined the constitutionally-legal regulation of freedom of a person, having rigidly tied it up with interests of society, on the one hand, and with rights for surrounding persons, on the other hand.
Examining influence of these or those representatives of political legal idea on ideology and constitutionally-legal acts of the Great French revolution, it is impossible to go round attention creation of apologist of the idea of people’s sovereignty.-J.J. Rousseau. According to him freedom is participation in affairs of community, in appointment of rulers, due to whom the citizens would consider that they submit only to themselves. According to J.J. Rousseau “It is necessary to distinguish firmly natural freedom which is limited only by forces of an individual, from civil freedom limited by general will. - If to examine, what is the best blessing for all, which must be the purpose of each system of legislation, we will find that blessing is taken to two major things: to freedom and to equality; because each private dependence is tantamount to taking from the state organism of some force; to equality - because freedom can not exist without equality” [11]. From the times of the Great French revolution, due to the ideas of J.J. Rousseau, freedom as the certain constitutionally-legal value began to be traditionally examined in indissoluble connection with equality, showing up in the requirement of “equal freedom for all”.
Examining the evolution of politically-legal points of view about freedom of a person and their fixing in constitutional acts, it is necessary to recognized that priority in this sphere, undoubtedly, belongs to the European countries. However it would be a serious error to bind the libertatious tradition exceptionally to Europe. The considerable contribution to development of legislation about freedoms and rights of a person was brought in by the United States of America. These former Britain colonies together with their own independence adopted at their mother country the palm of championship in the legal fixing and protection of freedom of a person in all its displays. The major North-American politically legal documents in this sphere are the First colonial charter, adopted in Virginia in 1601, the Massachusetts bill of freedoms of 1641 and Charter of Pennsylvania. In 1776 J. Maison writes the Declaration of rights for Virginia, in which there are declared freedom, independence and equality of all people of the state, the right to property. Undoubtedly, the prominent historical document, developing the ideas of freedom and inalienable human rights and people, is The Declaration of independence, written by T. Jefferson, adopted unanimously by the thirteen United States and ratified in 1776. It incarnated the beginnings of freedom of a person, its autonomy, and established that rights are subjected to protection from any encroachments of the state. The idea of freedom, human rights in unity with the principles of division of powers and federalism makes its basic postulates [12]. It is necessary to note that many leaders of the war of independence of the USA after its successful completion moved to Europe, first of all to France undergoing revolution; together with them those libertatious ideals which the former Britain colonies fought for returned on the “historical motherland”. And that is why the French Declaration on rights of a person and a citizen from 1789 contains elements of colonial charters, of the Declarations of independence and many other politically-legal documents of the North-American revolution.
The triumph of constitutionalism in the USA, France, Great Britain and the following in the 19th century “triumphal procession” of constitutions over Europe appropriately entailed the “rooting” of the principle of freedom of a person as one of basic principles of any civilized state. At the same time, already on the early stages of constitutionalism there took place “breaking” up of the concept of freedom into two aspects: freedom ( English “liberty”) as the fundamental, abstract principle, reflecting the status of a person in the society and the state, and freedom (English “freedom”) as the concrete measure of his possible conduct. The classic of the British liberalism J. St. Mill was one of the first to pay attention to “duality” of freedom, and on the break of 19-20 centuries this phenomenon was expressly described by the German statesman Ellinek: “Existence of limitations, being especially painful for an individual, historically stipulated the requirement of recognition of the certain rights for freedom. At the nearest consideration, however, it is not difficult to convince that we deal not with separate rights, but only with especially recognized directions of individual freedom which in itself is unique and means the state of the individual free from intervention of the state” [13]. Unfortunately, in the Russian language, unlike the English language, the both aspects of freedom have the identical name, that brings in the element of vagueness and additional complication for the law enforcement activity.
The analysis of the constitutions of the “first generation” gives the possibility to assert that during the 19th century there formed and got the statutory fixing the certain list of civil freedoms (“freedoms”) which in the set gave the representation of the free position of a person in the constitutional state (“liberty”). To the number of such it is possible to relate the right to the personal freedom and inviolability, freedom of speech and publication, freedom of assemblies, freedom of religion (right of worship, teaching (freedom of education) and, finally, freedom of unions (right to association). The first three specified freedoms are most often specified in the constitutional texts; and it’s understandable why A.V.Daisy in his classical work about bases of constitutional law in England, speaks on them illustration on their example their own conception of domination of the right [14]. At the same time, the best standards of the European constitutions (the Constitution of Norway of 1814, the Constitution of Belgium of 1831, the Constitution of Romania of 1866 and other) contain the wider list of civil freedoms, adding to the above mentioned the freedom of movement and choice of residence, and the freedom of petitions. At the same time there takes place the gradual working out in detail and specification of constitutionally-legal norms about freedoms of a person, their declaration refreshes in establishment of institutional and procedural guarantees of their realization.
Summarizing the results of the given analysis, it is possible to assert that the modern understanding of the human freedom was developed in the evolutional way. From this point of view the world history can be parted in three large stages: 1) from ancient times to Renaissance - forming of social and political and social economic pre-conditions of freedom of a person; 2) from Renaissance to the times of bourgeois -democratic revolutions - forming of ideological bases of freedom of a person; 3) from the times of bourgeois -democratic revolutions till present - forming of politically-legal bases of freedom of a person. And the contents of the last stage, and especially - on its modern stage, characterized by globalization of politically-legal processes, we shall specify in the next part of our research.
Undertaking o9f legal and judicial reforms in the Russian Federation, maintenance of social and economic development of the country, the necessity of fuller embodiment in life of the constitutional positions about rights and freedoms of a person as the supreme value and all-round maintenance of their judicial protection put before the Russian constitutional justice the task of further improvement. In this context it is not casual that the 15-th anniversary of the Constitutional Court of Russia as the supreme body of the constitutional justice in our country was celebrated by the International conference "The uniform legal space of Europe and activities of the constitutional justice". It is obvious that one of the most perspective tendencies of development of the whole Russian justice, not only constitutional, but in other its forms, is the achievement of this application to European standards in the field of protection of rights and freedoms of a person, and first of all to the positions of the European Convention about protection of human rights and basic freedoms and based on it decisions of the European Court on human rights.
The processes of globalization in European integration inevitably touch the Russian Federation. And it is already the obvious reality, reflected in growth of economic interindependence of Russia and European state, rapprochement of social and political systems, in which there are more revealed general principles of development and functioning, strengthening of relations between different organizations and separate citizens. President of the Russian Federation V.V. Putin in the message to the Federal Assembly on April 26, 2007 emphasized the constructive nature of partnership of Russia with the European Council and set the task of further development of these relations. He also positively estimated growth of the role of the Russian regions in decision of nation-wide tasks, in particular development of effective state, providing safety and worthy life of the people. The President noted that at present decentralization of authorities in the sphere of state management achieved in Russia the highest level for its whole history, and it is one of the main criteria of the political culture and development of the society. According to the President, it certainly, does not mean that the federal centre takes out of itself the responsibility for quality of the life in the regions, but it is important that the system of management becomes more flexible and more close to the people due to the fact that more and more decisions are made at the local level [1].
The worthy contribution to the development of integration of Russia to the legal space of Europe and decision of other tasks, facing the state, on the ground of observance of the principle of the constitutional legality can and must take the bodies of Russian constitutional justice - the Constitutional Court of Russia and constitutional (charter) courts of the subject of the Russian Federation. They could play the important role in the sanction of difficulties, connected, first of all, with processing of the greater number of applications and widening load, facing the European Court on human rights in Strasburg. It can be fully executed, as, first, the main fundamental human rights, fixed in the European Convention, essentially correspond to rights and freedoms guaranteed by the Constitution of Russia, as well as to the constitutions and charters of the subjects of the Russian Federation. Second, on the ground of Part Four Article 15 of the Constitution of the Russian Federation the European Covenant is an integral part of the Russian legal system.
The Chairman of the Constitutional Court of the Russian Federation V.D. Zorkin has repeatedly emphasized in his speeches that in activities of the Constitutional Court of Russia from its very beginning there was confirmed such approach, when universal principles and norms of the international law are applied as standard, conforming with which in the state are realized rights and freedoms of a person and a citizen, fixed in the Constitution. The legal positions worked out by the Constitutional Court of the Russian Federation, are based, on the European standard in the sphere of the fundamentals rights and freedoms, as they are expressed in the European Covenant in its interpretation of the Strasburg Court [2].
To the full it refers to the constitutional (charter) courts of the subjects of the Russian Federation, which already have practice of application at working out of their own decisions both European standard in the field of protection of the human rights, and taking into account these standards of legal positions of the Constitutional Court of Russia. In that subjects of the Russian Federation (a small number), where such courts were created, and their activity became the integral element of improvement of the regional state mechanism and municipal authorities, the important factor of maintenance of rights and freedoms of citizens.
In Republic Tatarstan formation of the Constitutional Court, which continued the activities of the Committee of the constitutional control, was initiated by President of the Republic M.Sh. Shaymiev and was supported by the Parliament of Tatarstan that has removed the constitutional control at the qualitatively new level. From the very beginning of the activity of the Constitutional Court it maintained firmed relations with the higher bodies of the republic, based on the strict understanding the positive contribution of the regional constitutional justice in development of mechanisms of the legal state, harmonization of federative relations, filling with real contents of the principle of the social state, as well as strengthening of other fundamentals of the constitutional system. The important direction in functioning of the court is application of European standards on human rights.
At present it is important for all the bodies of regional constitutional justice to apply directly to the European Covenant and decisions of the European Court on human rights, as well as to other recognized by Russia international-legal documents of legal character, bearing in mind the already mentioned position of the Constitution of Russia about norms of the international law as the part of the legal system of the country in combination with positions about the uniform legal space of Russia and about correspondence of regional basic laws to the federal Constitution. Besides, according to the Constitution of Tatarstan the universal principles and norms of the international law are the component of the legal system of the republic, and rights and freedoms of a person and a citizen are recognized and guaranteed according to the universal principles and norms of the international law and in accordance with the Constitution of the Russian Federation and the Constitution of Republic Tatarstan (Part Four Article 24, Part One Article 27).
The legal proceedings of the constitutional justice by the Constitutional Court of Tatarstan testify that in necessary events he used these arguments at working out its own legal positions and making final decisions. Till present the Constitutional Court of Republic Tatarstan has made 55 final decisions, including 28 resolutions and 27 definitions. Thus in 12 resolutions and in 2 definitions the Constitutional Court of the republic applied the universal principles and norms of the international law and international agreements of the Russian Federation. It means that at working out of its legal positions the Constitutional Court of Tatarstan in each second resolution applies international, European sources of law.
The exact example of application of international-legal standard in activity of the Constitutional Court of the republic is the case on the complaint of the citizen D.Kh. Akhmadeev. The applicant, veteran of military service, disputed the legal norms of the resolution of the republican government, regulating granting of subsidy-privileges on payment of the services of gas supply differently depending on composition of the family of the payer. On his opinion, the given norms had the discrimination nature since provided the actual reduction of the subsidies-privileges at increase of family members, residing with the veteran.
It is known that, Article 14 of European Covenant on protection of human rights and fundamental freedoms, containing prohibition of the discrimination, has the limited nature and distributes only on the rights and freedoms stated in the given Covenant. Other rights and freedoms, for instance, social and economic, not controlled by the Covenant can be not subjected to verification for discrimination nature. The same is the practice of the European Court on human rights, which confirmed the auxiliary nature of Article 14 of the Covenant that as a rule it can be applied only in the aggregate with another Article (Articles) of the European Covenant [3].
In this connection the greater possibilities are given by the International Pact on civil and political rights, whose Article 26 distributes on unlimited circle of rights and freedoms, but practice of its controlling body - the Committee on human rights - allows applying the prohibition of discrimination in the sphere of social, economic and cultural rights and freedoms.
At consideration of the complaint of the citizen Akhmadeev exactly this practice was applied by the Constitutional Court of Republic Tatarstan, in particular the decisions of the Committee on human rights from April 9, 1987 (on the case Zvaan-de Vries against Netherlands) and from April 3, 1989 (the case Ibragim Geye against France), according to which Article 25 of the Pact, which guarantees equality before the law and prohibition of discrimination can be distributed and can be applied in the sphere of social maintenance, including pension maintenance and social insurance.
Taking into account the given arguments, grounded on the practice on application of the International Pact on civil and political rights, the Constitutional Court of Republic Tatarstan has recognized the disputed by the citizen person D.Kh. Akhmadeev norm, differentiating granting to the subsidies-privileges on payment of the services of gas supply depending on composition of the family of the payer, not corresponding to the Constitution of Republic Tatarstan (the Resolution from July 18, 2006). On the ground of given resolution the concrete case of the applicant has been reconsidered by the Ministry of social maintenance of Republic Tatarstan, and he was returned the excessive paid sums, and on behalf of the government of the republic the specified Ministry has worked out the measures on indemnifying of the similar amounts to all other citizens, to whom subsidies-privileges were given in reduced volume.
The given case is an illustration not only of the possibility of application of European and other international standards on protection of rights and freedoms of a person and a citizen in activity of bodies of the constitutional justice, but also for revealing of separate problems, outside the spheres of decisions of the constitutional courts. The given case has shown, in particular, the necessity of speedup of the process of ratifications by the Russian Federation of European social charter, signed by our country in September 2000. At the same time there are the grounds to speak about the necessity of entry of changes in Article 14 of European Covenant on protection of human rights and fundamental freedoms having excluded the restrictive clause about distributing of the given article only on rights and freedoms, controlled by Covenant.
In the Resolution from May 11, 2006 No.20-П on the case about the verification of constitutionality of separate positions, in supplement to the Resolution of Head of administration of the City of Kazan from August 23, 2005 No. 2086 "About organizing on the territory of the City of Kazan of the electoral districts on election of deputies of the representative body of the municipal unit of the city of Kazan", in connection with the complaint of the citizen M.G. Pikashova the Constitutional Court of Republic Tatarstan has grounded the legal position, using positions of item "b" Article 25 of the International Pact on civil and political rights from December 16, 1966, according to which each person without any discrimination and ungrounded restrictions must have the possibility to vote and be elected on the fair periodic elections, held on the bases of the general equal electoral right at suffrage and providing free will of voters, and the positions of Article 3 Record No. 1 to European Covenant on protection of the human rights and the fundamental freedoms, fixing the right to free elections.
In the Resolution from December 6, 2006 No. 22-П on the case about the verification of constitutionality of Article 6 of the Laws of Republic Tatarstan from December 8, 2004 No. 63-ZRT "About address social maintenance of the population in Republic Tatarstan" in connection with the complaint of the citizen N.I. Sidukov the Constitutional Court of Republic Tatarstan came to the conclusion that the republican legislator has provided the guaranteed minimum (basic) level of measures of social maintenance of rehabilitated citizens and persons, recognized suffered from political repression. On this ground the disputed by the applicant norms of the Law were recognized corresponding to the Constitution of the Republic Tatarstan. At the same time the Constitutional Court has noted that the republican legislator has the right to change legal conditions of granting the measures of social maintenance of the considered category of the citizens, not reducing the achieved level. In motivation of such approach there was applied the legal position of the Constitutional Court of the Russian Federation, expressed in its Definition from December 1, 2005 No. 462-O at request of the Sakhalin Regional Duma, about duties of the subjects of the Russian Federation to enter the efficient legal mechanisms, providing not only preservation, but also possible increasing of earlier achieved level of social protection of the rehabilitated persons and persons, recognized suffered from political repressions, and the positions of the item 3 Article 12 of the European social charter (in its revised wording from May 3, 1996), according to which for realization of the efficient realization of the right to social maintenance the state-participants of the charters undertake to strive consecutively to improve the system of the social maintenance.
So, There has been determined the guideline for the further improvement of the measures of social maintenance of rehabilitated persons and persons, recognized suffered from political repression.
In the Similar way the Constitutional court of Republic Tatarstan applied the specified legal position of the Constitutional Court of the Russian Federation and the corresponding to it legal positions of the European social charter at consideration of the case about measures of social maintenance of persons, who worked in the rear during the period from June 22, 1941 till May 9 , 1945 not less than six months exclusive the period of work on temporarily occupied territory of the USSR, or awarded with orders or medals of the USSR for selfless labour during the Great Patriotic War, in connection with the complaint of the citizen R.G. Khusainov (the Resolution from February 22, 2007 No. 23-П). The given case also eloquently shows the possibility of the regional constitutional justice on application both international norms and standards on human rights, and taking into account the given standards of legal positions of the Constitutional Court of Russia.
In one more resolution, adopted in May 2007 on the case on the complaint of the citizen I.M. Murtazin, disputed the number of the positions of the Charter of the municipal unit of the city of Kazan regarding regulation of the order of election of the head of the newly formed municipal unit, the Constitutional Court of Republic Tatarstan has applied the decision of the European Court on human rights, grounded on Article 3 of record No. 1 to the European Covenant about protection of human rights and fundamental freedoms, from January 25, 2000 No. 51501/99 on the complaint Viktor Cherepkov against Russian Federation. The Constitutional Court of the republic applied also positions of Articles 3 and 4 of the European charters of local self-management, come into force for the Russian Federation from with September 1, 1998, revealing the concept of local self-management and fixing the sphere of its competence. These sources of the law allowed our court fully and all-round to motivate the legal position on the given case and have become the important criterion at estimation of constitutionality of the norms disputed by the applicant.
Article 4 of the European Charter of local self-management has been applied in the Resolution of the Constitutional Court of Republic Tatarstan on the case on the complaint of the citizen R.M. Nurtdinov, who disputed separate positions of the statutory legal acts of the Executive Committee of the Municipal unit of the city of Kazan, concerning the order of payment of housing-public utilities. In the resolution with reference to the specified article, fixing the full freedom of actions of the bodies of local self-management for realization of the own initiative on any question of their competence, there was defined the right of the Executive committee of the municipal unit of the city of Kazan to regulate the questions of management of the housing fund of the city, being the municipal property. The given legal position was confirmed and in the resolution on the case of the complaint of the citizen R.S. Karamullin, who disputed the statutory acts of the Executive committee of the municipal unit of the city of Kazan about tariffs on basic facilities. Besides, in this resolution with the reference to Recommendation of the Committee of the Ministers of the Council of Europe No. R (2005) from January 19, 2005 "About financial facilities of local and regional authorities" was fixed the duty of the municipal body of the city of Kazan to preserve and to provide at approving tariffs on housing-public facilities address and maximum individualized measures of financial maintenance of most needy categories of grantees of the given services.
Not less actively there are applied the European standards and norms of other international legal documents in the field of protection of human rights by the constitutional (charter) courts by other subjects of the Russian Federation. The given practice regional organ to constitutional justice gains the stable nature and has excellent prospects, and that has already been mentioned in scientific publications of a number researchers, in particular by the judge of the Constitutional Court of the Russian Federation N.S. Bondar [4].
It is necessary to specify that application of the European Covenant and Records to it, as well as decisions to Strasburg Court - is not simply the question of legal technology of decision making by bodies of the regional constitutional justice. This tendency seriously influences the prospects of the judicial system of Russia on the whole and the constitutional (charter) courts in particular. Application of European standards on protection of human rights in activities of the constitutional justice gives the preconditions for increase of independence of whole judicial branch from authorities. The possibility to be orientated on the European standards allows raising the role of the Russian courts and at the same time entrusts all the branches of authorities with additional liability to take all necessary measures for greatly quick and their full observance. Eventually, it will allow all Russian courts, and in particular constitutional (charter) courts in the Russian Federation, at the high level to execute their main function – to protect rights and freedoms of a person and a citizen and hereunder render the weighty assistance in development in Russia of the European on its nature legal state.
The literature
1. Российская газета, 27 апреля 2007 г.
2. Зорькин В.Д. Россия и Конституция в XXI веке. Взгляд с Ильинки. – М.: Норма, 2007. – С. 298, 335.
3. Гомьен Д., Харрис Д., Зваак Л. Европейская Конвенция о правах человека и Европейская социальная хартия: право и практика. – М.: изд-во МНИМП, 2008. – С. 454, 455.
4. Бондарь Н.С. Права человека и их европейские стандарты в конституционном пространстве России как единого федеративного государства. В сб.: Актуальные проблемы теории и практики конституционного судопроизводства. – Казань, 2006. – С. 65, 66. Переплеснина Е.М. Нормы международного права в судах конституционной юстиции субъектов Российской Федерации // Современный конституционализм. – 2006, – № 1. – С. 67-73.