Categories of justice and balance in practice of the Constitutional Court of the Russian Federation

Rundkvist Anton Nikolaevich Lecturer of the Department of the Theory and Methodology of Law at Liberal Arts University 620041, Russia, Sverdlovskaya Oblast' oblast', g. Ekaterinburg, ul. Zheleznodorozhnikov, 3 anton-upol@mail.ru Other publications by this author

Justice is a fundamental legal category. As S. S. Alekseev notes, the legal form of social regulation embodies the prevailing moral principles, the principles of justice, and hence the closeness in the semantic meaning of the words "legal", "right" and "fair" ^[1]. With a high degree of confidence, we can say that a social regulator that does not meet at least the most basic factual claims for compliance with justice should not be called law, since legal regulation is assumed to be fair by default. Whether it is such in fact is another question. However, no legislator and no law enforcement officer, adopting certain legal acts within their competence, will never openly declare that such acts in form and (or) in content do not rely on justice as a fundamental general legal principle. Such a statement would simply seem absurd, despite the fact that the opposite statement about the conformity of the adopted legal act with the requirements of justice, on the contrary, is perceived quite adequately at a purely intuitive level — as if something is taken for granted. A similar chain of reasoning is given by R. Alexi, offering to evaluate as an option for the first article of the constitution the provision "X is a sovereign, federal and unjust republic" and concluding that there is an obvious logical contradiction within this maxim ^[2].

Nevertheless, there are many difficulties associated with justice, considered as a legal (legal) category (that is, as a general legal principle, or more precisely, a superprinciple ^{[3, 4]}, superprinciple ^[5], superprinciple ^[6] or metaprinciple ^[7-9]), stemming from the vagueness of its content. Unfortunately, even after several millennia of disputes, legal scholars have not come to a consensus on the best way to solve this problem. Within the framework of this study, it is proposed to analyze one of the possible approaches to determining the essence of the principle of justice, based on the concept of legal balance.

This approach is based on the position of I. Kant, expressed in the following: "The state system based on the greatest human freedom according to the laws, thanks to which the freedom of everyone is compatible with the freedom of everyone else, is in any case a necessary idea that should be taken as a basis when drafting not only the constitution of the state, but also any individual law" ^[10]. In other words, here we are talking about legislative regulation that allows maximum mutual coordination of the interests of all subjects of law. Such a thought intersects with the definition of the common good given by D. I. Dedov, understood "as a state of society in which decisions regulating public relations affecting an unlimited circle of members of society have the goal to bring and benefit for any and every person (not for the majority of members of society, from which the ideologists of the theory of public choice are repelled), regardless of it depends on his individual preferences, interests, his lifestyle" ^[11]. Consequently, if the goal of achieving the common good is set before the state, then fair legal regulation (and otherwise, as already noted, it is not supposed to be) should provide for the distribution of subjective rights and legal obligations between subjects in such a way that, as a result, a certain balance (equilibrium) is observed, ensuring the fullest realization of the legitimate aspirations of all members societies. The corresponding balance can be set in various ways. To study them, as well as to understand their close relationship with legal justice, it is permissible to refer to the extensive law enforcement practice of the Constitutional Court of the Russian Federation (hereinafter referred to as the Constitutional Court of the Russian Federation).

From 14.01.1992 to 24.03.2020, the Constitutional Court of the Russian Federation adopted 641 resolutions, of which, during the study, 421 resolutions were identified, not only containing an indication of the principle of justice, but also allowing, by studying the context, to highlight one or another aspect of the content of this principle in relation to specific legal relations. In 128 resolutions, out of the allocated 421, the categories of justice and balance are mentioned in semantic connexion with each other, which is 30.4%. That is, in almost a third of cases, the Constitutional Court of the Russian Federation, revealing the content of legal justice, refers to the concept of balance. At the same time, different formulations can be used to reflect the relationship between these two categories, and sometimes several formulations that differ from each other can be found in one resolution at once. In total, 128 resolutions containing references to justice and balance in one context involve the following methods of semantic binding of these categories: 1) achieving balance through a fair judicial decision (justice of the trial) in 26 cases (20,31 % from 128 orders); 2) the use of the phrase "a fair balance (balance)" in 23 cases (17,97 %); 3) achieve a balance by restricting the rights and freedoms that meet the requirements of justice in 20 cases (15,63 %); 4) an indication of the principle of justice as the basis of a balance in 15 cases (11,72 %); 5) achieving balance through the establishment of a fair measures of legal responsibility — in 13 cases (10,16 %); 6) ensuring a balance with the principle of justice in 13 cases (10,16 %); 7) ensuring a balance in compliance with the fair legal regulation — in 5 cases (3,91 %); 8) the simultaneous disruption of the balance in violation of the principle of fairness in 5 cases (3,91 %); 9) the orientation of the principle of justice to ensure the legal balance in 4 cases (3,13 %); 10) the balance of constitutional rights and fair negotiation of rights and interests in 3 cases (2,34 %); 11) the balance of constitutional values by the equitable redistribution of public Finance — in 2 cases (1,56 %); 12) the simultaneous balance of providing state measures of social support and functioning of public-legal mechanisms for redress on the basis of equitable principles in 2 cases (1,56 %); 13) simultaneous realization of the principle of fairness and the balance of property rights — in 2 cases (1,56 %); 14) simultaneous balancing of interests and guarantee the fairness of the application of measures of restraint in 2 cases (1,56 %); 15) the manifestation of the principle of justice through the need to balance rights and responsibilities of all participants of the market interaction in 2 cases (1,56 %); 16) guarantee a balanced budget by the principle of justice — in 1 case (0,78 %); 17) the balance of justice through the grace of environmental conditions — in 1 case (0,78 %); 18) the simultaneous achievement of balance and providing General legal principle of fairness in 1 case (0,78 %); 19) at the same time ensuring a balance of interests and guarantee fair conditions for the implementation of the rights in 1 case (0,78 %); 20) the establishment of a just payment for legal services with the aim of balancing protect constitutional values is 1 (0.78 percent); 21) taking into account the principle of equity in the balance of rights and legitimate interests in 1 case (0,78 %).

Despite the variety of the above formulations and the objectively different degree of their generalization, at least one conclusion can be made with sufficient confidence: in accordance with the law enforcement practice of the Constitutional Court of the Russian Federation, the relationship between the categories of "justice" and "balance" certainly takes place. In the resolutions considered, two main variants of the designation of this connection are distinguished: either balance is clearly indicated as a goal achieved by fulfilling the requirements dictated by the principle of justice; or simultaneous observance of both balance and the principle of justice is assumed. In any case, it is permissible to talk about the interdependence of these categories: justice often implies the establishment of a certain balance, and the balance is always assumed to be fair. And although in a significant number of decisions of the Constitutional Court of the Russian Federation, in the text of which the content of the principle of justice is revealed, the described relationship is not so clearly traced (in total, 293 decisions "against" 128 are obtained, which is equivalent to a ratio of 2.29:1), nevertheless, it is impossible to find any solution where the categories of balance and justice would obviously be opposed to each other or the phrase "unfair balance" would be mentioned. This means that the focus on achieving a certain balance can be called at least one of the essential aspects of the principle of justice.

However, the objects of balancing (in other words, what turns out to be subjected to the balancing procedure in accordance with the requirements of the principle of fairness) and, as a result, the types of balance itself can differ in different acts of the Constitutional Court of the Russian Federation, and in some resolutions several such objects can be specified at once. So, out of the designated 128 resolutions, the objects of balancing are: 1) in 78 cases (60.94% of the total number of mentions of justice and balance in one context) — private and public interests; 2) in 45 cases (35.16%) — constitutional values; 3) in 12 cases (9.38%) — the interests of participants in civil turnover (market interaction); 4) in 11 cases (8.59%) — the rights and interests of participants in certain legal relations (without specifying which legal relations are meant); 5) in 4 cases (3.12%) — constitutional rights; 6) in 3 cases (2.34%) — rights and obligations; 7) in 3 cases (2.34%) — rights and principles; 8) in 2 cases (1.56%) — rights and legitimate interests of various categories of citizens; 9) in 2 cases (1.56%) — social support measures; 10) in 1 case (0.78%) — budget; 11) in 1 case (0.78 %) — interests of participants in civil proceedings; 12) in 1 case (0.78%) — interests of participants in criminal proceedings; 13) in 1 case (0.78%) — principles.

If we summarize the above data, we will be able to distinguish the following two levels of balance depending on the object of balancing (balancing): 1) the balance of constitutionally protected values; 2) the balance of subjective rights and legal obligations of participants in specific legal relations.

The most common objects that require balancing on the basis of the principle of justice have precisely protect constitutional values, which the constitutional court in various decisions, in particular, could include: freedom of speech and freedom of the media, as well as the right of ownership ^[12]; values protected by articles 8, 35, 37, 45, 46, 55 and 59 of the Constitution of the Russian Federation ^[13]; the rights and legitimate interests of convicts and victims ^[14]; the rights and freedoms of man and citizen as the highest value, public and private rights and interests of citizens ^[15]; the autonomy of local self-government and autonomy of the population in solving local issues, as well as the warranty equally to all citizens social rights, regardless of the territory of a municipal formation they live ^[16]; guaranteeing skilled and accessible legal support, autonomy and independence of the judiciary and freedom of contract defining the rights and obligations of the parties under civil law relations ^[17] (although in this particular case the determination of the Constitutional Court of the population in the mutual balancing of values is not indisputable, since the independence of the judiciary and freedom of contract is not in the state to interfere in principle); justice and stability of judicial decisions, justice and legal certainty ^[18]; the foundations of the constitutional system, morality, health, rights and lawful interests of other persons, ensuring the country's defense and state security ^{[19, 20]}, in other words, the values for the protection of which, in accordance with part 3 of article 55 of the Constitution of the Russian Federation may be Federal law restricts the rights and freedoms of man and citizen; a decent life and free development of man, and everybody has the right to housing, the recognition and guarantee of the right of private property and General legal principle of conscientious fulfillment of obligations ^[21]; the interests of society and the protection of fundamental rights of the individual ^[22]; public and private interests ^[23]; the right to social security ^[24], etc.

In general, having classified all constitutionally protected values, between which a fair balance must be observed, they can be divided into three groups:

1) legitimate interests of various subjects of law, divided into private and public; at the same time, private interests are individual (personalized) interests of specific persons, and public (public) interests are the interests of an indefinite (non—personalized) circle of persons who are equal members of society; a special place among public interests is occupied by the values listed in part 3 of Article 55 of the Constitution of the Russian Federation, since without ensuring their protection, it becomes objectively difficult to satisfy any other interests, including private ones, about which E. V. Chikunova convincingly notes that "restriction of individual rights and freedoms is quite possible, since it is carried out in favor of the common good, and therefore of the person whose rights are restricted" ^[25];

2) basic human and civil rights and freedoms, divided into absolute and non—absolute; the first type includes rights and freedoms that are not at all amenable to restriction (part 3 of Article 56 of the Constitution of the Russian Federation can serve as a guideline for determining their range), and the second type includes rights and freedoms that may be restricted by federal law in order to protection of the above-mentioned public interests listed in Part 3 of Article 55 of the Constitution of the Russian Federation; in addition, neither the legislator nor the law enforcement officer should ever forget that, according to Article 2 of the Constitution of the Russian Federation, a person, his rights and freedoms are indisputably the highest value, and therefore it is human rights and freedoms that should be given preference when other equal conditions in the event of an irremediable contradiction with other values;

3) the principles of law as the fundamental ideas that set the direction for all legal regulation and are divided into general legal (these include, in particular, the principle of justice), intersectoral and sectoral.

And only after having previously agreed on all the above values (to put it another way, having determined the most important value orientations for further legal regulation), it is advisable to proceed to a balanced (even) distribution of subjective rights and legal obligations between the participants of specific legal relations. According to the established practice of the Constitutional Court of the Russian Federation and the content of the principle of fairness expressed in it, such distribution should be carried out taking into account the following rules: 1) prohibition of different treatment of persons in the same or similar situations ^[26-28]; 2) application of reasonable differentiation in relation to subjects in different situations ^{[29, 30]}; 3) implementation of priority protection of the interests of the obviously weaker side of the relevant legal relations by introducing additional restrictions for the stronger side ^[31], providing additional guarantees to the least protected subject ^{[32, 33]} and (or) freeing the latter from unnecessary encumbrances ^[34].

Summarizing what has been said, it can be stated that an important essential component, largely revealing its own content of the principle of justice, is the focus of this principle on establishing a certain balance in the ordering of the most important social relations, and for the general designation of such an equilibrium, it is proposed to use the term "legal balance", which means the desired result from the point of view of achieving the common good legal regulation, embodied in the pre-approval of such constitutionally protected values as private and public interests, fundamental rights and freedoms of man and citizen, as well as legal principles, the distribution of subjective rights and legal obligations between the participants of the relevant legal relations, which ultimately allows each subject of law to realize their legitimate aspirations to the maximum extent possible, without encroaching on the rights, freedoms and legitimate interests of others.