Ernest Ametistov
Doctor of Law
Judge of the Constitutional Court
of the Russian Federation
PROTECTION OF THE HUMAN RIGHTS BY THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION: FIRST RESULTS AND FURTHER PERSPECTIVES
I. Legal basis of the activities of the Constitutional Court of the Russian Federation in the field of protection of human rights and freedoms according to the Constitution of 1978 and the Law of July 12, 1991.
The Constitutional Court of the Russian Federation (hereinafter referred to as the CC) was elected on October 30, 1991 by the Fifth (axtraordinary) Congress of the People's Deputies of the RSFSR and consisted of 13 Judges (while there remained two vacancies). During the first two years of the Court's existence its activities were based on relevant provisions of the Constitution of the Russian Federation of 1978 with subsequent amendments and additions, and on the Law on the Constitutional Court of the Russian Federation of July 12, 1991. In particular, the competence of tne CC in field of the protection of the rights and freedoms of the citizens resulted primarily from the right granted to it by Article 165(1) of the Constitution to settle cases pertaining to the constitutionality of the law application pracvice which practice became the main source of cases pertaining to the infringement on the said rights and freedoms. Besides the matters of protection of the rights and freedoms repeatedly arose during the consideration by the CC of cases of the constitutionality of Laws and other normative acts which was also within the competence of CC as per Article 165(1) of the Constitution of 1978. Another form of reaction by the CC to infringements on human rights and freedoms (as well as to other offenses in the field of legislation) was issuing of representations of elicited offenses.
The competence of the CC was specified in detail in the Law on the Constitutional Court of the Russian Federation of July 12, 1991. Chapter 3 of the Law was devoted to the consideration of cases pertaining to the constitutionality of the law application practice. Part 1 of Article 66 which opened the Chapter primarly enumerated the subjects entitled to recourse to the CC with such cases. The CC considered the cases pertaining to the constitutionality of the law application practice on the basis of individual complaints of citizens of the RSFSR and USSR (The Law was adopted just a few months before the disintegration of the USSR), foreigners, apatrides and juridical persons.
Further the grounds for the resource to the CC by the above mentioned subjects with individual complaints were established. They could do so if they claimed that their basic and legitimate interests were infringed upon or not protected by an effective ruling of a Court of Law or a decision of any other state organ or an official acting in the territory of the RSFSR as a result of:
1. non-application of a normative act applicable in accordance with the meaning of the Constitution;
2. application of a normative act not applicable in accordance with the meaning of the Constitution;
3. a non-consistent with the Constitution interpretation of a normative act being applied;
4. non-application of a relevant provision of the Constitution in cases when it is applicable directly.
The enumerated grounds for recourse to the CC were substantially narrowed by a provisio in Part 2 of Article 66 of the Law of July 12, 1991. It indicated that the CC considered the cases pertaining to the constitutionality of the law application practices only in the case of the contested decision being taken in accordance with a custom. The meaning of this term was disclosed in the Law in the following somewhat obscure formula: "The decision is considered to be taken in accordance with a custom whem, from the point of view of the prevailing law application practice, the circumstances of the case, established the way they were established by this decision, should be legally evaluated in a similar way and result in legal cosequences similar to the ones deermined by this decision".
This far from simple formula became even more complicated in Part 3 of Article 66 which indicated that the CC might consider a case on the basis of an individual complaint about an act of law application "which, while not being adopted in accordance with a custom of law application practice".
The above mentioned normative definition of a custom of law application practice from the very start caused different interpretations and discussions among perplexed Judges of the CC. In the end they agreed to understand the custom as an interpretation or approach to the law application practices which had become or definitely had good chances to become typical and widespread among the law applicators.
The Law further established certain conditions of acceptability of individual complaints for consideration by the CC. They included a number of references in the text of the complaint, the payment of a state duty equal to 100 roubles (approximately US$ 1 at the exchange rate current at the time of the adoption of the Law) and several other circumstances among which the most important one was the impossibility to appeal against the decision contested by the plaintiff "through regular means" (Article 69, Paragraph 1 (6)). What was understood by that was the processing of the case through all available instances of Courts of Law or of administrative organs (if the issue raised in the complaint by its nature was not subject to litigation).
Article 73 of the Law of 1991 established the consequences of the passing of a judgment by the CC on an individual complaint. The binding character of judgment of the CC on such complaints was extended only to those juridical relations which were mentioned in the said complaint. (Thoung the CC could, using the right granted to it by Article 72 of the Law, in its sitting without the invitation of the parties extend previously passed judgments to other cases which arose in connection with individual complaints if: 1) an individual plaintiff filed a similar complaint pertaining to the same custome of law application practice the constitutionality of which had been verified earlier by the CC; 2) the custom of law application practice was based on an international treaty or a normative act recognized by a CC ruling as unconstitutional or non-effective in connection with such a ruling; 3) the individual plaintiff requested to confirm the constitutionality of a specific international treaty, a normative act or a custom of law application practice with reference to a CC ruling).
In accordance with Article 73 the ruling of the CC in favour of an individual plaintiff was considered by the Law only as a ground for a verification in the prescribed manner of the final decision contested by the plaintiff. The infringement upon a fundamental right or legitimate interest had to be redressed and the fundamental right or a legitimate interest had to be protected by a competent authority if there were no impediments to it other than the ones established by the ruling of the CC. The ruling of the CC recognizing the law application practice custom in this case as unconstitutional obligated the organ or afficial who had issued a normative act, decision, interpretation or directive on which unconstitutional practice was based, to study the necessity to cancel the said act and only if this was directly indicated in the ruling of the CC.
Thus the ruling of the CC in a case of an individual complaint was not appicable directly and was accompanied by several provisos and references to the competence of other organs which formally reduced its effectiveness.
As for the procedure of consideration of cases pertaining to the constitutionality of international treaties and normative acts in the framework of which there could (and did) arise issues related to the protection of the social human rights, this procedure entitled the CC to consider international treaties of the Russian Federation which had not yet entered into force or had not been ratified, laws and other vormative acts of the Congress of the People's Deputies, the Supreme Soviet of the Russian Federation and Presidium of the Supreme Soviet of the Russian Federation and other normative acts of the supreme state organs of the Russian Federation and the Council of Ministers of the Russian Federation, the laws and other normative acts of the supreme state organs of the Russian Federation's constituent Republics (Article 57 of the Law on the Constitutional Court of the Russian Federation of 1991).
All these acts were considered by the CC from the following points of view: the contents of the norms; the character of issues raised in them; their form; the order of their signature, conclusion, adoption, publication, entry into force; the division of legislative, executive and judical power established in the Russian Federation; the delimitation of competence among the supreme organs of state power and administration of the Russian Federation stipulated by the Constitution of the Russian Federation: and the delimitation of objects of competence among the Russian Federation and the Federation's constituent Republics (Article 58 of the Law) stipulated by the Constitution of the Russian Federation.
A request to verify the constitutionality of the international treaties and normative acts could be submitted to the CC by all the supreme organs of legislative, executive and judicial power of the Russian Federation, all the People's Deputies, the supreme organs of state power of the constituent Republics of the Russian Federation and public organizations in the person of their republican organs (Article 59).
Starting from the moment of the coming into force of a ruling of the CC recognized an international treaty or a normative acts as unconstitutional such treaties and acts could not be ratified, officially published, publicized and brought into force they were considered non-effective. The provisions of other normative acts based on normative acts recognized as unconstitutional could not be applied by the Courts of Law and by other organs and officials and had to be canceled in a prescribed manner. The rulings of the Court of Law and of other law applying organs which were based on the same treaties and normative acts were not to be executed (Article 65 of the Law).
As for the third manner of reaction by the CC to the infringement upon human rights - the representations of the CC - their essence amounted to the following. According to the Article 55 of the Law on the Constitutional Court of the Russian Federation the CC after eliciting concrete violations of the Constitution and of the legislation could by means of making a representation draw the attention of competenet authorities and officials to the elicited offenses. The representation of the Court was to be made in a separate document. It had to be considered by a state or public organ, an enterprise, office, organization or an official to whom it was addressed within a month from the date of its receipt. The addressed was obligated to inform the CC without delay of the decision taken as a result of the consideration of the representation. Thus the execution of the representation of the CC was not in its essence legally binding.
Guiding itself by the above mentioned provisions of the Constitution of 1978 and the Law of July 12, 1991 the CC started working in late 1991, and the consideration of cases related to the protection of human rights from the very beginning became one of the main fields of its activities.
II. The practice of the Constitutional Court of the Russian Federation in the consideration of individual complaints about the infringement upon human rights in sociale sphere.
The majority of the cases pertaining to the unconstitutionality of law application practice which have been considered by the CC during the first period of its activities (January 1991 - October 1993) was related to the protection of constitutional human rights in the social sphere.
The first among them was case of the verification of the constitutionality of law application practice of the termination of laborur contracts on the grounds provided for by Para 1(1) of Article 33 of the Code of Labour Laws of the RSFSR. The consideration of this case was caused by the individual complaints of citizens B. A. Altgovzen and M. F. Stadnikova whoo had been dismissed from their jobs on the grounds of the above mentioned provisions of the Code of Labour Laws which made possible to dimiss workers on the sole ground of their reaching the age of retirement provided they were entitlid to full old age pension.
In its ruling of February 4, 1992 the CC stated the existence of law application practice of termination of labour contracts on this ground and recognized such custom as non-compliant with a number of articles (4, 14, 28, 32, 184) of the Constitution of the Russian Federation of 1978. Article 32 of that Constitution established the principle of equality of all citizens before the Law irrespective of any circumstances and although the list of those circumstances did not specifically include old age but according to the CC it was not exhaustive. The CC indicated that the Constitution "did not restrict the list of circumstances excluding any discrimination both in the legislation and in the law application practice". In confirmation the CC invoked Article 14 of the Constitution according to which all persons employed in the sphere of production of employment, dismissal, remuneration for the work and protection of labour. Article 38 of the Constitution which proclaimed the right to work included in it "the right to choose the profession, the occupation and the work in accordance with one's vocation, abilities, professional training, education and with the account of public necessities". These are the criteria which are to be taken account of during both the conclusion and the termination of a work contract, and not the age of retirement which in itself cannot be an obstacle to the realization of one's right to work. Moreover the Law of the RSFSR "One the employment of the population in the RSFSR" furtherdeveloped these ideas of the Constitution and directly stipulated equal opportunities in the field of employment irrespective of age (Article 5).
Proceeding from the Russian Federation ensured the fulfillment in good faith of obligations arising from universally recognized principles and with account of the Declaration of the rights and freedoms of man and citizen, adopted by the Supreme Soviet of the RSFSR on November 22, 1991 which confirmed the priority of these principles, norms and treaties before the Laws of the RSFSR, the CC in confirmation of its position referred to a number of international documents. Paragraph 1(1) of an article of the Code of Labour Laws, according to the CC, was not in compliance with Article 7 of the Universal Declaration of Human Rights of 1948 and with Paragraph 2 of Article 2 of the Convention of the ILO #111 regarding the discrimination in the field of labour and occupation which obligates the states to pursue a national policy aimed at the promotion of the equality of opportunities in relation to labour and occupation in order to eradicate all discrimination in this field; with the recommendations of the ILO #162 on senior workers and #166 on the termination of labour relations on the employer's initiative, according to which old age as such cannot be a ground for the termination of labour relations if it is not connected with the peculiarity of the job to be done.
The CC ruled that the infringement upon the constitutional right to work of B. A. Altgovzen and M. F. Stadnikova had to be redressed by the Supreme Court of the RSFSR, and that they were to be restored in their jobs if there were no impediments to it other than the ones removed by this ruling of the CC.
The CC also stated that in accordance with Section 4 of Articlr 73 of the Law "On the Constitutional Court" the Supreme Soviet of the RSFSR had to study the issue of the necessity the abrogation of the provision of Para 1(1) of the Code of Labour Laws of the RSFSR.
As a result of this ruling of the Court not only were the citizens who had lodfed complaints restored in their jobs, but Paragraph 1(1) of the article of the Code of Labour Laws was abrogated by the Law of the Supreme Soviet of the RSFSR of March 12, 1992 but several other provisions of the labour legislation related to this matter as ewll that naturally changed the juridical practice.
On June 23, 1992 the CC heard the case of verification of constitutionality of law application practice in cases pertaining to the restoration in the jobs which practice was established on the basis of Section 4 of Article 90 of the Basic Legislation of the USSR and Union Republics on labour, Section 5 of Article 211 of the Code of Labour Laws of the Russian Federation and Para 27(1) of the Resolution of the Plenum of the Supreme Court of the USSR of April 26, 1984 #3 "On the application by the Courts of Law of legislation regulating the conclusion, amendment and termination of labour contracts". The consideration of this case was caused by an individual complaint lodged by V. A. Ludakov and other citizens.
The above mentioned acts established limited periods of time (not more than two years) for the consideration of the citizens complaints pertaining to the restoration in their jobs. Upon the expiry of these periods such complaints were not accepted for consideration by the Courts as a result of what the citizens found themselves judicial protection against dismissal.
The CC recognized that the application of these acts resulted in the establishement not of a term of prescription but of a term of restriction, restriction the rights of both the citizens and the Courts of Laws. The civil procedural legislation applicable to labour cases does not establish the period during which the citizens are entitled to lodge complaints against effective rulings of the Courts of Law in civil cases of all categories including labour cases. The restricting terms established in labour legislation not only ignored the possibility of a judicial error, but essentially deprived the Courts of the right to redress it as well. As a result the following provisions of the Constitution of the Russian Federation of 1978 were violated: Article 63 guaranteeing the right to judicial protection without any exemption; Article 34 establishing the principle of equality of all citizens before the Law and the Court which in this case was not applied because the restricting terms deprived the citizens lodging complaints against relevant decisions on dismissal of the possibility to use supervising litigation for the protection of their rights; Article 61 on the guarantees of the protection by the citizens of their rights, freedoms and legitimate interests by all legal means not contravening the law; Article 31 proclaiming that rights and freedoms of a man approved by the society and the state his honour and dignity are supreme values; Article 166 guaranteeing to the citizens the right to collective consideration of cases in the Court of Law; Article 51 on the right of citizens to lodge complaints in state organs and to officials without any restrictions as tothe delays; several other articles of the Constitution.
The custom of law application practice under consideration also contravened a number of international documents establishing the right to judicial protection and the unacceptability of arbitrary limitations of the rights and freedoms of citizens (Articles 8 and 29 of the Universal Declaration of Human Rights, Paragraph 3(b) of Article 2 of the international Pact on civil and political rights, Article 4 of the international Pact on economic, social and cultural rights).
The CC recognized the custom of law application practice limiting the right of citizens to judicial protection in cases of restoration in their jobs as non-comliant with the Constitution of the Russian Federation and requested the Supreme Court of the Russian Federation to redress the infringement on this right, and the Supreme Soviet of the Russian Federation - to study the question of the necessity of abrogation of Section 5 of Article 211 of the Code of Labour Laws of the Russian Federation which served as the ground for the above mentioned practice. It also recognized as ineffective in the territory of the Russian Federation the relevant provisions of the labour legislation of the former USSR and the Resolutions of the Plenum of the Supreme Court of the USSR as contravening the Constitution of the Russian Federation.
The decision of the CC was implemented. The Law of September 25, 1993 amended the labour legislation thus removing the rules pertaining to the restriction terms, and the claims of the citizens who had appealed to the CC were settled in their favour.
The case of verification of the constitutionality of law application practice of the restriction of the period of remuneration for involuntary absence from work due to unlawful dismissal which practice was established on the basis of the application of labour legislation and the resolutions of the Plenum of the Supreme Court of the USSR, the Supreme Court of the Russian Federation regulating the above mentioned issues was considered by the CC on January 27, 1993. This case was initiated by individual complaints of S. A. Mazanov and six other citizens. By a ruling of a Court these citizens were restored to their jobs as their dismissal was recognized as unlawful. But in accordance with the legislation in effect at time and with prevailing practice the period of involuntary absence from work was paid to some of them only for three months, and to some - for one year, while the actual period of involuntary absence from work largely exceeded these periods (from two up to twelve years).
The CC came to the conclusion that this custom of law application practice contravened first of all the general legal principles of justice, equality befor the law, the state's guarantee of rights and freedoms of man and citizen, the compensation for any damage caused to a person by unlawful actions of state organs or officials, which principles were enshrined in the Constitution of the Russian Federation. These principles, the CC indicated, possess the highest degree of normative generalization, they determine the contents of constitutional human rights, the rights of citizens in different fields, are universal by their character and thus regulate all spheres of social relations. The general obligatory character of these principles consists both in their priority befor other legal regulations and the extension of their application to all subjects of Law.
The CC emphasized that the Constitution of the Russian Federation of 1978 proclaimed the human rights and freedoms as the supreme value belonging to a man from birth (Article 32) and their limitation was acceptable only when it was necessary for the protection of the constitutional order, morality, health, legitimate rights and freedoms of other people in a democratic society (Article 33). The limitation of the terms of payment of an involuntary absence from work was not basedon these grounds and thus such practice contravened the above mentioned articles of the Constitution. It also contravened Articles 55 and 56 of the Constitution which stipulated that the right to full compensation for the damage caused by unlawful actions of state organs or officials belong to the scope of the rights of man and citizen, and particular branches of Law should not impose limitations on the possibility of the compensation of the damage to the citizens whose rights and fredoms had been infringed upon by such actions.
The prevailing custom of law application practice also contravened the principles of treaty relations reflected in the contents of a number of constitutional rights and freedoms of citizens as unlawful dismissal of a worker was unjust and violated the principles of equality and concordance of the joint will of parties to a labour contract, of the fulfillment of contractual obligations in good faith and unacceptability of a unilateral baseless refusal to fulfill them. The payment for involuntary absence from work for the period of dispute on the restoration in the job caused by it infringe upon the right of the worker to earn his living by the work he had freely chosen and reduce the degree of protection against unemployment. As a result Article 53 of the Constitution on the right to work and Article 14 of the Constitution guaranteeing to the worker fair terms of employment, dismissal from and payment for the work were contravened.
As a result the CC recognized as non-compliant with the Constitution the custom of law application practice restricting the right of citizens to full compensation for the damage caused by involuntary absence on the basis of several articles of the Basic Legislation of the USSR and Union Republics on labour, the Law of the USSR "On the procedure of settlement of individual labour disputes", the Code of Labour Laws of the Russian Federation and certain resolution of the Plenum of the Supreme Court of the RSFSR on this issue.
The CC indicated that its resolution was a ground for the consideration by the Supreme Court of the Russian Federation of complaints of persons who have appealed to the CC and also requested the Supreme Court of the Russian Federation to study the questions of the necessity to introduce amendmentss and additions to relevant legal acts on the basis of which the law application practice was established.
This resolution was implemented only partially. The rights of the citizens who had appealed to the CC were restored, the resolutions of the Plenum of the Supreme Court in this respect were no longer applied, but required amendments to the legislation were not introduced.
On February 5, 1993 the CC considered the case of verification of constitutionality of law application practice pertaining tothe judicial procedure of settlement of disputes related to the provision of residential quarters; of verification of constitutionality of administrative eviction of citizens from arbitrarily occupied residential quarters on the basis of a procurator's sanction; of verification of constitutionality of a refusal to file a criminal action.
The case was heard on the basis of a complaint by S. A. Serebriakov who demanded that the following decisions be recognized as non-compliant with the Constitution: the dicision by a Court of Appeal which caceled a previous decision of a Court on the claim of this citizen regarding the provision of residential quartes and the closing of the case in view of the dispute being beyond the competence of the Court; the resolution of the procurator on the administrative eviction from arbitrarily occupied residential quarters; the resolution of the procurator refusing the filing of a criminal action against workers of Militia.
The essence of the case consisted in the following. One of city People's Courts of the Mari Autonomus Republic produced a decision on the provision to the plaintiff and some other citizens of comfortable flats in connection with the necessity of the vacantion by them of a dilapidated building which could crumble. This decision was not implemented by the local authority - the Executive Committe of the Soviet of People's Deputies pursuant to what S. A. Serebriakov arbitrarily occupied one of the flats of a newly built buildiing.
In this connection the Procurator's Office ordered the eviction of the plaintiff and his family from that flat and to provide him with another one. But the plaintiff judged that the flat which was offered to him did not meet the minimum standarts of residential premises and filed an action demanding the recognition of the authorization to occupy that flat as non-effective. The Court judged the action justified. But the workers of the Militia, obeying the orders of the Procurator's Office, have forcibly evicted the plaintiff along with his family from the flat arbitarily occupied by him, but the eviction was carried out with violations of the prescribed procedure. Serebriakov demanded the institution of criminal proceedings against the workers of the Militia, but the Procurator's Office refused on the grounds of the absence of the corpus delicti.
In the meantime the appeal instance - the Presidium of the Supreme Court of the Mari Autonomus Republic - canceled the decision of the Court of the first instance which obligated the Executive Committe to provide the plaintiff with residential premises and closed the case because it was beyond the competence of the Court.
The CC found the decision of the cassation instance on the rejection of the decision of the court of the first instance and on the termination of the case in compeiance with the Constitution. That is because it was clear from the operative legislation that when the question on the granting the living space is in the competence of the bodies of the executive power, which solve it in the framework of their competence on running the dwelling fund, the arising dispute has no civile and legal character and thus can not be considered by the courts in the framework of the civil legal procedure. Neverthaless the CC stressed, that this doesn't derprive the citizen of the order specified for the procedure on cases, proceeding from the administrative and legal relaction (that is in a form of appeal against the illegal actions of the power bodies and officials).
At the same time the CC found as noncompliant with the Constitution the rule established by the law, when the decision of the Procurator's office on the administrative eviction can be appealled against only to the senior level procurator's office, but cannot be considered by the court. This rule and the practice based on it contrabened with the article 63 of the Constitution, which guaranted to everyone the protection of his rights and freedoms in the court. Deprivation of the possibility of fornsic examination of the administrative decisions impermissable in a serious infrighement of the rights of the citizens impermissable in the democratic society, which contravenes article 33 (part 2) of the Constitution of nonallowance of infringement of the rights of the citizens, but only to the extent it might necessary for protection of the constitutional state order, morals, health, legitimate rights found noncomplivanto with this practice also some other articles of the Constitution.
As to the question of the rejection in raising the criminal case against the militia staff that enforced S. A. Serebriakov to leave the flat, which he seized voluntarily, the CC rejected the claim of the latter, because in this concrete case there had been a necessity to examine the actual circumstances, and according to the law, this was beyond the competence of the Court.
In this resolution the CC also boted that the Supeme Soviet of the RF has to study the question of the necessity of changing a number of contradicting norms of the housig legilsation of the RF, which hinder the realisation of the constitutional right for legal protection also of some other provisions of the Constitution.
After the adoption of this resolution by the CC the practice of general court regarding this question has changed - in fact stopped rejecting citizen's claims on examining the disputes on administrative evicion. Nevertheless on December 21, 1993 there had been adopted resolution No. 10 of the Supreme Court of the RF "On examining by the Courts of the actions that violate the rights and freedoms of citizens", where once again the attcution of the courts was attracted to their obligation ot accept such leinel of disputs for examination.
The protection of the social rights of a special category of citizens was a subject for examination by the CC in the case of verifying the constitutionality of the law-enforcing practice of appeals agaings dismissals and disciplinary punishments by the workers of the Procurator' office.
This practice has arisen as a result of applying article 218 of the Code of labour laws of the Russian Federation, of article 40 of the Law of the Russian Federation of January 17, 1992 "On the Procurator's office of the Russian Federation", of article 23 of the Regulation on the encouragement and the discipinary responsibility of the procurators and the examining magistrates of the bodies of the Procurator's office of the USSR, confirmed by the Decree of the Presidium of the Supreme Soviet of the USSR of the February 17, 1984.
The case had been exammined in the CC on April 16, 1993 due to the individual complaints of Telman Gdlyan, Nikolai Ivanov and other citizes.
The plaintiffs appealed against the infringement of their constitutional right for legal protection in the context of their dismissal and of the disciplinary punishments imposed on them by the procurators of the areas, regins of the Russian Federation and by the Procurator General of the USSR. In fact, the Code of Labour Laws of the Russian Federation in its article 220 for many years deprived a numeros category of officials according to special lists of the legal protection. The labour disputes of this category of officials, including procurators, their deputies and assistants in relation to imposing the disciplinary punishment or dimissals were handlend only by the superior bodies. In September 1992 these lists were radically curtailed by the Law, though in relation to the abovementioned officials of the procurator's office the former rule conerning the labour disputes in the court was preserved (article 218 of the Code of Labour Laws). On the basis of this rule, presented in the Labour Code, the approriate provisions of the Law "On the Procurature' and the Regulation on the encourage ments and disciplinary responsibility of the procurators and the examining magistrates. And though neither in the first or in the latter normative act there had been direct mention that labour disputes of this category of officials are not in the competence of the courts, neverthelees on the basis of the labour legislation there had been established such a lawenforcing practice, according to which the courts continued to reject the claims of the officials of the Procurators office on the violation of their labour rights.
The CC stated that such practice contravened the constitutional right on legal protection, which in contained in article 63 of the Constitution, the principle of equality of all the citizens (in regard to the legal protection), proclaimed in article 34 of the Constitution, the prohibition of limiting the rights and freedoms of sitizen (except for a numer of circumstances contained in the Constitution) according to article 33 of the Constitution. Such a practice also contravcened article 48 of the Constitution, which established that "the requirements to the candidate running for the position of a state empoys are stipulated only by the character of the position's duties", as the character of such duties of the officials of Procurator's office cannot be the basis for infringing their right for legal protection. This practice also led to the violantion of the equal right of these official for labour (article 48 of the Constitution).
Thus, as the CC pointed, the courts solving the labour disputes of the officials of the Procurator's office applied the articles of the Code of the Labour Laws, nonapplicable according to the meanin of the Constitution, and didn't apply the directly anoncerned articles of the Constitution, which had to be applied.
Like in a number of other cases, the CC established non-compilance of the abovementioned lawenforcing practice with the gennerally recognised international standarts in the field of human rights, including article 8 of the Universal Declaration of human rights of the right of a person for an effective restoration of this rights by competent national courts; article 14 of the International Coverant on civil and political rights on the right of a person for fail and open trial by a competent, independant and impartial court; article 7 of the some Declaration and article 26 of the Coverant on the economic, social and cultural rights, which stresses that the state may put limitations to the mentioned rights "to the extent to which it is compatible with the nature of the named rights and only with the prupose to promote rights and only with the purpose to promote common wellbeing in the democratic society".
The CC found the lawenforcing practice, which derprived the officials of the Procurator's office of their right for legal protection, contravening with the Constitution of the RF and noted that the Supreme Soviet of the RF should study the question on the necessity of the RF. The Law "On the Procurature of the RF" and the Regulation on encouragements and disciplinary responsibility of the procurators and the examining magistrates of the bodies of the Procurature of the RF.
The resolution of the CC had been implemented particully. Though necessary changes hadn't been introduced into the legislation even up to now, nevertheless the Supreme Court of the RF gave clarifications, obliging the courts to take over such king of disputes for consideration. As a result, the courts started taking aver and satisfying the claims concerned, being guided by the respective provisions of the Constitution of the RF as rules of immediate action. Above all, the decree No. 2267 of the President of the RF of December 22, 1993 confirmed "Regulation on the Federal state service", which granted all the state employes with the right to apply to the court for solving such king of disputes.
III. The protection of rhe Social rights by the Constitutional Court in the course of examination of the cases on the constitutionality of the international treaties and normative acts.
In the framework of this procedure the CC during the first period of its activity managed to examine only two cases, which related to the protection of human rights in the social field.
First among them was the case on verifying the constitutionality of the resolution No. 403 of the Council of Ministers of the Russian Federation of July 17, 1991 "On the meansure on relisation of the order of the Chairman of the Supreme Soviet of the RSFSR" and the Chairman of the Coucil of Ministers of the RSFSR of July 8, 1991 No. 1551-1 "On the additional meansures on creating the state bread and other food resources in 1991" and the resolution No. 43 of the Goverment of the Russian Federation of Januaru 24, 1992 "On the orderly arranged sale of eight motor Vehicles for "special cheques and "special - purpose" deposits on the territory of the Russian Federation, examined by the Court on June 9, 1992. The Central Committe of the Independent trade union of the railway workers and transport builders of Russia acted as the intercessor in the case.
The core of the matter was the following. The Government of Russia under the condition of the consumer deficite which existed those days and to emourage the productivity of labour of the Workers of some leading objects and of agticulture initialed the special scheme of savinys for these workers to enable them to purchased light motor vehicles thet were then in high demand and could be pourchased only after long years of waiting in line. Those workers were given the oppotunity to the transfer their money to "spesial - purpose" deposiys in the Savings Bank. When the amount of deposit reached the required sum they were issued the "special - purpose" cheques for purchasing of the automobile without standing in the line at place of theit permanent residence. According to the initial conditions the holders of such cheques could obtain the cars in the second half of 1991. But later the government postponed the terms of the purchase of the cars till the first half of 1992. But by that time Russia stepped into the phase of the liberalisation of prises for cars as well as of purchaising of the cars as the "special - purpose" cheques lost the possibility of purchaising of the cars as the "special - purpose" cheques had been multiply devaluated. In reality they lost their savings and suffered huge losses.
While considering this case the CC established that by persuanding the citizens to accumulate money in the form of "special - purpose" cheques and promising to let them by cars the soverment entered into an yreement them in which the citizens were creditors and the governmet - the deptor. Unilaterally postponing the terms of the purcase of the cars the government in reality introduced a moratorium which was not justified by anyemergency circums tancec, acts of elements or other force majeur eircum-starces provided for the by the civil law of Russia. As a result a number of constitutional rights, especially property related, were infringed upon (Articles 10, 13, 17, 33, 52 of the Constitution) which led to the limitation of the freedom of the economic activity of the citizens-propriectors. The government also infringed other Articles of the Constitution, for example the Article 67 (2) on the right of a peason for the reinbursement by the state of any damage caused by the illegal actions of the State bodies and the officials, because the sufficient compensation of the devaluated "special - purpose" deposits and the cheques had not been arranojed.
The CC found the abovementioned acts the Government of the RF as non-compliant with the Constitution and demanded to restore the legal relationships based on these acts as of the period before there application.
The implementation of this ruling of the CC faces certain dfficulties.
On the resolutions of the Government of the RF of June 12, 1992 394 and of September 16, 1992 that introduced changes into the normative acts relating to the "special - purpose" deposits and the cheques, the real situation improves very slowly.
The holderse of the cheques started to appeals to the Courts on the basis of the above ruling of the CC.
Starting from Desember 1992 only the Peoples Court of the Baumansky district of Moscow studied 200 appeials of the holders of the "special - purpose" deposits and cheques to the Ministry of Finance and the Ministry of Trade on the fulfilment of obligations lending the automobiles. The madgority of these appeals was satisfied in a form of money compensation.
Almost the same case (on the property rights of the citizens infringed during the economic reform - has been studied by the CC on the constitutionality of the Law of RSFSR of October 24, 1991 "On the indexation of money incomes and saving of the citizens in RSFSR" and resolution of the Supreme Soviet of RSFSR of RSFSR of Octouber 24, 1991, on the procedure of putting into operation of the Law of RSFSR. "On the indexation of the money incomes and the saving of the citizens in RSFSR; the resolution of the Congress of People's deputies of the Russian Federation of March 27, 1993, "On the compensation and the Restoration of the saving of the citizent of the Russian Federation", the decree of the President of the Russian Federation of the March 28, 1993 "On the protection of the saving of the citizens of the Russian Federation" had been examined.
The case had been studied on May 31, 1993 according to theintercessions of the People's Deputy Mr. V. V. Mukusev. The intercessor proceed from the constitutionality of the above acts, but noted that the state bodies practically do not apply them regarding them as non-compliant with the Constitution.
The CC confirmed the constitutionality of all the three acts directed at protection of the citizen's property (Article 13 of the Constitution) of the right of any citizen to be a proprietor (Article 52 of the Constitution), of the realisation of the policy of the rise of the real incomes of the workers (article 23 of the Constitution).
The CC also stated that the State hower bodies the Supreme Soviet of the RF and the Council of Ministers - the Government of RF do not take appropriate meansures to implement and ro realise the Law "On the indexation of the money incomes and saving of the citizens in RSFSR" thus infrighing upon the above constitutional reghts of the citizens and fail to fulfill their duties as stepulated by the number of other articles of the Constitution (Articles 109, 125, 127). Using its powers established by Article 55 of the Law "On the Constitutional Court the CC pained in its Ruling at the impermissibility of such niolation and at the necessity of the elaboration and adoption of measuer on realisation of the Law on indexation.
This ruling of the CC is in the phase of impementation. On December 24, 1993 the Decree of the President of RF "On the single compensation to the depositors of the Saving Bank of the Russian Federation having deposits by January 1, 1992", which provided the triple enlargement of the amounts of deposit non-interest account, they had a right to pay from this account for the dwelling services on tariffs which existed by November 1, 1993. The necessary expanations on the application of the above decree had been given by the Government and the Ministry of Finance of the RF.
On February 4, 1994 the State Duma of the Federal Assembly of the Russian Federation adopted a resolution in which proposed to the President of RF to prolong the favorable conditions of the utilisation of the compennation established by the Law till March 15, 1994. This proposed had been approved.
But radical solution of the matter is possible only on the basis of the corresponding Law. The draft of such a Law - on the restoration and protection of the savings of the citizens of the Russian Federation - is prepared in the State Duma and provides the State guarantee of the restoration of the real value of the citizens savings before the reforms started by depositin money at the Saving'g Bank. This money is regarded as special deft obligations of the RF and is its internal state deft. The State guarantees to the citizens the posibility of the limited convertion and by the year 2000 - of the free convertion the named defr obligations into the Russian currency according to the rate which would exict on the day of convertion. The debt obligations could also ysed as means of payment when buying (privatizing) the state and municipal entre - prises, and of the stocks of the privitized enterprise holded by the State.
IV. The question of the protection of civil rights in the presentations by the Constitutional Court. Using its right contained in Article 55 of the Law of the Constitutional Court the CC made numeroes presentations in the name of the highest bodies of the State power and administration demanding to elimihate the violations of the Constitution in the legislation and practice. Among them were the presentations dealing with the protection of the social rights of the citizens.
On April 23, 1993 the CC made a presentation to the President of the RF regarding the necessity to quality the disabled qyerillas not recruited to the army as the Disabled veterans on the basis of the data on their service in the guerilla deachements. The recommendations of the CC were taken into account in the Decree of the President of the RF No. 596, 1993.
On May 20, 1993 the representation had been made to the Chairman of the Supreme Soviet of the RF regarding the necessity to approve the Law of the State insurance in the nearest future. The assence of the presentation was partially taken into account in the Decree of the President of RF No. 1530 of September 28, 1993 and in the resolution of the Government of the RF No. 1094 of October 26, 1993 and No. 101 of February 12, 1994.
On May 26, 1993 the CC made a presentation to the President of RF and to the Chairman of the Supreme Soviet of the RF in which drew attention to the infringement of the rights of the pensioners for pension and to the absence of norms in legislative acts allowing to protect their rights. The proposals of the CC were partially used in the Federal Law "On introducing changes and additions into the Law of the RSFSR "On the State pensions in the RSFSR" as well as in the Decree of the President of RF No. 2121 of December 10, 1993 and in some other normative acts.
Conclusins.
Almost one half of the cases considered by the CC of Russia during the first period of its activities were related to the Social human rights. In these cases the CC adopted a firm position of protection of such rights against the arbitrariness of the state. In reality it performed the task of liberation of the Russian Law and the practice from the vestiges of the totalitarian system. The analises of the cases which had been stupied by the CC shows that such vestiges are still "alive" in social field; in the Labour Law which was a remedy of the Runghless exzpotiation of the worders under the conditions of the compulsory labour: in the right of property, which prochically was an instrument of the expropriation of the property from the citizens in the favour of the totalitarian State. And in the field of protection of human rights of its activities the CC aquired prestige and esteem of the Russian public opinion.
The CC contributed to the development of the legal consciousness in Russia - not only the legal consciousness of citizens, but also of the Law applying bodies. Thanks to its activities for the first time in the history of this country its Constitution started its transformation from a mere set of propaganda slogas into a really effective legal document having supreme legal force and capable to become a real means of protection of rights and freedoms proceeding from the date of the Resultativity of the Ruling of the CC its majority was implemented by all the three branches of state power - the legislative, the executive and the judiciary. But even when unconstitutional acts were not abrogated in due time the law application practice was following the position adopted by the CC. In these cases the judges found themselves facing a dilemma - to continue impementing acts recogized as unconstitutional and thus violate the willfully Constitution or to guide themselves by the Constitution as the supreme Law of the country. Unthinkable, things began to happen: under the influence of the CC the Court of Law started to impement more often the norms of the Constitution while passing judement on concrete cases. Now one may speak without any exaggeration of a true revolution happening in minds of Russian Judges, who still are Soviet. One can understand the meaning of this phiniminin if one will remember that they are people who for decades worked in the condition of "telephone law" when the supreme Law for them was not the Constitution and not event the Laws but the latest directive of the nearest Party chief of a ministerial instruction.
One more deed accomplished by the CC during the consideration of cases pertaining to human rights was constant invocation of not only the Constitution of Russia but also of its international obligations in the field of human rights as the effective Constitution establishes the priority of international treaties over domestic Law and the possibility of direct application of the norms of international Law. This is an entirely new phenomen in the judicial practice of Russia which permits it to take a worthy place among the civilized nations of the world. There is hope that under the influence of the CC the other Courts of Law will also gradually start using the norms of international Law in their decisions.
In the end one has to note the importance of practice of the CC, the consideration by the CC of cases pertaining to human rights for the evolution inside the Constitutional Court itself. During the consideration of cases of such category the judges could agree on a ceratan position devoid of any political motivation and based solely on the Law, which made it more counvincing. Practice related to these case was a true school of unbiased and highly skilled justice. This made a big difference from the practice related to cases pertaining to the didvision of the power where most judgess failed to overcome their political inclinations and the rulins of the CC gradually acquired an increasingly tendentious character and finally resulted in a sad end to the Whole of the first period of its activities. One may state with confidence that should all the rulings of the CC of the Russia have been based on the approach, typical for the human rights cases, the history of Russia would be very different. However it is an absolutely different topic.
9. The competence of the CC in the field of the protection of the rights and freedoms of citizens according to the Constitution of December 12, 1994 and the Law of July 23, 1994.
On December 12, 1994 the Constitution of the Russian Federation was adopted by a popular referendum. On July 23, 1994 the new Federal Constitutional Law "On the Constitutional Court of the Russian Federation" entered into force. These two acts changed to a great extent the composition, structure and competence of the CC as well as in the field of protection of the rights and freedoms of citizens.
According to Article 125 of the Constitution and relevant articles of the Law on the Constitutional Court the CC may consider issues pertaining to the protection of the rights and freedoms within the framewodr of the procedure of settlement of cases of compliance with the Constitution of Federal Laws, normative acts of the President of Russian Federation, the Counsil of Federation, the State Duma, the Government of the Russian Federation, The Constitutions of the republics, chanters and also laws and other normative acts of they sybjects of Russian Federation, treaties between the bodies of the state power of subjects of the Russian Federation, the international treaties of the Russian Federation, which have not yet come into power. The right to interpret the Constitution in accordance with relevant requests was also inluded into the competence of the CC. In the framework of this procedure the consideration of problems related to human rights and freedoms is also possible. Thus the possibilities in this field were even ezpanded.
Concerning the procedure directly connected with human rights protection activities of the CC - i. e. the consideration of individual complaitnts by citizens about the infringement upon their constitutional rights and freedoms - the competence of the court was seriously reduced. Under, the Constitution and Law such complaints may be lodged in the CC not in connection with law application practice - as it was before - but only for the purpose of verification of the constitutionality of law applied of applicable in a concrete case. These complaints may be lodged in the CC by citizens whose rights and freedoms were infringed upon by such law, as well as by the associations of citizens and by certain other organs and persons established by Federal Laws (for Instance, the Human Rights Ombudsman).
One has to admint that such a decision of the legislator will hardly contribute to the strengthening of the protection of human rights by the CC. First, the law application practice was taken out of its competence, and sekond - all sub-legislative acts too. The Experience shows that these are spheres where most infringements upon constitutional rights and freedoms happen. While the draft Constitution was discussed the partisans of such a decision affirmed that as Article 46 of the Constitution gives the citizens the right to appeal against the decisions and actions (inaction) of the bodies of state power, local government, public associations and officials in Courts, then the violations in the field of law application practice and sub-legislative acts are covered by their article. But one has to consider the it will take a certain, maybe long time befor all the Courts will be able to overcome totalitarian mentality and start considering citizen's claims against the state with required qualification and responsibility. The main thing is that such Court has no competence to abrgate the sub-legislative normative acts, which violate the constitutional rights and freedoms of the citizens, and thus its decisions would cover only concrete cases.
So, the CC presently faces the task to interpret its new competence in human rights protection sphere in a manner which will enable it to compensate its actual reduction. Whether the Court will be able to ful fill such a task will be demonstrated only by its future practice.
