XVI Congress of the European Constitutional Courts Conference which took place in Vienna in May 2014, revealed a trend of development and enforcement of cooperation between European countries' constitutional courts both horizontally and vertically, that is , on the national level and in the framework of cooperation with supranational bodies. This process is followed by the complication of the national constitutional courts' role: the right to control compatibility of national norms with the principles of European law, on the one hand, and supranational norms with national constitutions - on the other hand.
The choice of an appropriate kind of decisions of the Russian Constitutional Court is connected with the means of legal interpretation used during its working out as well as with the grounds and aims of such a decision. A “negative” decision employs mainly the interpretation of sub-constitutional nature (on the level of legal branches and between them); it is based on the conclusion about the absence of indeterminacy in a legal norm and of a violation by this norm of individual rights. A «negative» decision is aimed at confirming constitutionality of the norm under examination. Either a «positive» content of a simple decision on inadmissibility is confined by sub-constitutional interpretation. Stating as its basis the absence of legal indeterminacy of the norm challenged, this decision is aimed at the protection of the applicant’s rights from improper application of the norm. A «positive» decision terminating the constitutional proceeding contains enlarged constitutional legal interpretation and is aimed at the elimination of passive legal interpretation of the norm, clarification of its constitutional legal sense, correction of legal application practice as well as procedural economy. A «positive» judgment is also aimed at the achievement of the same goals and besides, provides for the maximum publicity of proceedings before the Constitutional Court. A judgment recognizing a norm unconstitutional always contains a detailed constitutional legal interpretation of a norm, with the latter characterized by an active legal indeterminacy, and establishes a constitutional legal precedent.
В настоящей работе, также как и в двух, опубликованных ранее в настоящем издании, автор обращается к проблеме аналогии в конституционно судопроизводстве. При этом основной акцент делается на соотношении этого метода познании с иными, известными традиционной логике: дедукции и индукции. Одновременно устанавливается его место в российской конституционно-судебной практике в сравнении с англо-американской и континентально-европейской.
In the article its author is engaging in polemics with those alleging the incompatibility of a real competence of the Secretariat with its competences set up by the Law on the Constitutional Court of the Russian Federation. The article argues that the existing model of dealing with applications not only does comply with the law in force, but is also the most reasonable from the point of view either of the guarantees of the applicant’s rights and lawful interests or of the organization of work of the Court itself.
In this article the author examines some theoretical problems connected with the attempts to integrate principles of the precedent law into the Russian law. In author’s opinion, the basic problem is that of different normativity of law in the common law and in the civil law. In the English precedent law legal regulation is mainly exercised through casual rules created ad hoc, in the civil law regulation implies creating general rules. Uncritical utilization of the term “precedent” for characterization of judicial lawmaking in Russia can lead to superfluous analogies between the Russian and the English legal systems. To describe judicial lawmaking theory of law can propose more convenient terminology and conceptual schemes.
The article deals with the question of the impact of the legal positions of the Constitutional Court on the question of the necessity of interbudget subsidies to the Russian Federation subjects.
The reforms of justice in Russian and the search for an optimal mechanism of functioning of judicial power in the age of Great Reforms of the Emperor Alexander II were based on the principles which remain important for current reforms either. Within the framework of historical analysis of the separation of powers principle and of creation of attorneys of law institute as an element of adversarial process, the article suggests eventual ways of resolving the problem of delimitation of correct application of law and of shortcomings of legal norms, as well as of introducing bar monopoly for judicial representation.
The principles of the Convention interpretation are analyzed from the point of view of adversarial principle. The author clarifies the details of conventional legal order, determines the ratio of the European control and national sovereignty, gives his analysis of the principle of proportionality in the argumentation of the European Court and an assessment of national measures for the protection of human rights efficiency.