Critical analysis of the law-making paradigm of the Constitutional Court of the Russian Federation

Semchenkov Artemii Aleksandrovich Postgraduate student, St. Petersburg State University 199106, Russia, Saint Petersburg, line 22, 7 a.semchenkov@spbu.ru

There is an active discussion in legal science regarding the essential content of the decisions of the Constitutional Court of the Russian Federation (hereinafter referred to as the Constitutional Court of the Russian Federation or the Court) through the prism of its powers. The authors discuss the impact of decisions and legal positions on the Russian legal system, their precedency and normativity, as well as differently consider the issue related to the scope of the Court's powers.

         Taking into account the study of the law-making function of the Constitutional Court of the Russian Federation, it is necessary to critically consider the various positions on this issue separately. At the same time, the task of such an analysis is not to find a golden mean in the creation of law by the Court, but in an objective perception of the realities prevailing in the Russian legal order.

         As you know, Article 3 of Federal Constitutional Law No. 1-FKZ dated July 21, 1994 "On the Constitutional Court of the Russian Federation" (hereinafter – the FKZ on the Constitutional Court of the Russian Federation) provides for a limited list of powers of the Russian constitutional control body – the law limits the competence of the Court to the scope of this article.

         However, taking into account the special role of the decisions of the Constitutional Court of the Russian Federation as sources of law, their finality and legal force, as close as possible to the Constitution of Russia, the Russian legal order is aware of cases of the Court expanding its powers. The Constitutional Court of the Russian Federation, within the framework of Resolution No. 21-P of July 14, 2015, gave itself the authority, at the request of the President, the government and other public authorities, to assess the enforceability of decisions of the European Court of Human Rights. As part of the Resolution No. 44-P of December 6, 2018, the Constitutional Court of the Russian Federation adopted a decision that differs from the earlier decision of the Constitutional Court of the Republic of Ingushetia, although the Court literally did not have such a right, and, as many authors note, it was this decision that in many respects systematically influenced the reform in the system of statutory courts in the subjects of Russia ^[1].

         At the same time, a textbook example is the approach formed by the Constitutional Court of the Russian Federation to verify the restriction of rights in accordance with the logic of part 3 of Article 55 of the Constitution of Russia. In its decisions, the Court points out that when verifying the requirement in relation to the restriction of a particular right, the intervention must be proportionate, necessary and justified ^[2]. All three of these criteria are understood by the Constitutional Court of the Russian Federation uniformly in decisions and practice, while proportionality is understood as proportionality in a narrow sense ^{[3, p. 154]}.

         It is fair to say that the powers of the Constitutional Court of the Russian Federation are not limited to a literal reading of the law, but the question of the limits of the Court's powers, in turn, is the main subject of these legal discussions.

         Examining the creation of the law of the Constitutional Court of the Russian Federation, it is worth addressing the question of whether the Court as a whole has the right and authority to engage in law-making.

         In Soviet legal science, the courts categorically did not recognize the function of creating law. In particular, S. L. Zives argued that a different state of affairs would contradict the principle of separation of powers and the foundations of judicial power ^[4].

         However, such a position in the modern scientific paradigm hardly stands up to criticism. The creation of law by the courts cannot be considered as a substitute for the activities of the legislator, since, firstly, the courts are subordinate to the law both in terms of their activities and process, and in terms of decision-making – the administration of justice, and, secondly, the creation of law by the courts is aimed at harmonizing the Russian legal system, at finding a balance taking into account implementation of the principle of legality.

         In one of his speeches, V. D. Zorkin noted that the Constitutional Court of the Russian Federation is the "guardian of the separation of powers": the Court protects the Constitution of Russia through the exercise of powers and thereby determines the real content of the principle of separation of powers, just as the Court itself is in the system of separation of powers, and constitutional justice is "only part of the relations for the exercise of state power based on its division" ^[5].

         It can be reasonably argued that one of the functions of the Constitutional Court of the Russian Federation is law-making. However, it is necessary to refer in more detail to the scope of the specified function.

         N. S. Bondar for a large number of years in his works calls the Constitutional Court of the Russian Federation not just a court, not a "quasi-court", but a state authority "greater than a court" ^{[6, p. 30]}. Entering into a scientific dispute with A. A. Liverovsky and M. V. Petrov, this approach is argued by the fact that the Constitutional Court of the Russian Federation is not a "quasi-court", that is, a court that goes out of the system of separation of powers, and although it is a "court of power", it is a classic judicial body of constitutional control. The position that the Constitutional Court of the Russian Federation is "more than a court" is conditioned by the peculiarities, as indicated in Article 1 of the Federal Code on the Constitutional Court of the Russian Federation, of the judicial body of constitutional control, independently and independently exercising judicial power through constitutional proceedings. Such a position in the hierarchy of public authorities does not simplify the role of the Court, but, on the contrary, exposes the problems of interaction between authorities.

         G. A. Hajiyev notes that "the sacred essence of the Constitution of the Russian Federation" can be fully felt only by the Constitutional Court of the Russian Federation, consisting of judges ^[7]. The search for a "compromise between values" is one of the tasks (functions, powers) that only the Constitutional Court of the Russian Federation can perform. In turn, the dissenting opinions of the judges of the Constitutional Court of the Russian Federation, "arguments of a possible winner in a complex dispute on the development of law", indicate legal difficulties in finding a balance, and strengthen the "authority of the court" ^[8].

         Referring to the understanding of the role of the Constitutional Court of the Russian Federation, N. S. Bondar, denying the understanding of the Court as a "quasi-court", argues that the Court is a "quasi-creator". The legal positions of the Constitutional Court of the Russian Federation, receiving their formalization and consolidation, in their "final legal characteristics" approach the "normative and regulatory legal practice", while maintaining the main features of the judicial body. Considering the international practice developing in a similar way, N. S. Bondar rightly draws attention to the fact that, recognizing a law, a rule of law or part of it unconstitutional, the Constitutional Court of the Russian Federation (according to the logic of Article 79 of the Federal Code of Criminal Procedure on the Constitutional Court of the Russian Federation) deprives it of legal force, that is, "cancels it", which means the presence of normative properties in decisions The courts. The Constitutional Court of the Russian Federation is a "generator of constitutional and legal energy, which provides, in particular, constitutional and judicial "alignment" of the norms of sectoral legislation."

         There are also more conservative estimates of the functions of the Constitutional Court of the Russian Federation.

         B. S. Ebzeev notes that many lawyers are to a certain extent "passionate" about the law-making process of the Court, and the very function of creating law is largely secondary, "since it offers such solutions that are connected with the text of the Constitution by very thin threads" ^{[9, p. 152]}. That is, the Court may well create a new law, as, for example, was done in the framework of Resolution No. 12-P of October 31, 1995, one of the few on the interpretation of the Constitution of Russia, in which the Constitutional Court of the Russian Federation concluded that "the provisions of Article 136 of the Constitution can only be implemented in the form of a special a legal act on a constitutional amendment that has a special status and differs from both federal law and federal constitutional law."

         In contrast to N. S. Bondar's arguments about the role of the Constitutional Court of the Russian Federation, it should be noted that for the most part, the regulatory control of the Russian constitutional justice body is specific. Abstract standard control arose after the amendments to the Constitution of 2020, but boils down to checking for compliance with the Constitution of Russia of an international treaty that has not entered into force or its individual provisions (Article 91 of the Federal Law on the Constitutional Court of the Russian Federation). This legal configuration indicates that the Constitutional Court of the Russian Federation considers a very limited number of cases on complaints and requests received. According to S. D. Knyazev, it should not be forgotten that the Constitutional Court of the Russian Federation works on "tolling raw materials", the Court cannot independently initiate constitutional checks, as well as is bound by the content (subject) of appeals ^{[10, p. 12]}. However, this does not prevent the Court from formulating legal positions that acquire methodological significance for lawmaking, although the position of the Court in the system of public authorities is well defined.

         Separately, it is worth turning to the theoretical and empirical analysis of the forms of participation of the Constitutional Court of the Russian Federation in the emergence of law in the Russian legal order.

         From the standpoint of the theoretical side of this issue, attention should be paid to the fact that Court decisions can influence the implementation of conditions of public life, change or cancel the application of legal norms ^[11]. The Constitutional Court of the Russian Federation can either recognize the norm as inconsistent with the Constitution of Russia, or give it an interpretation, the application of the norm according to the logic of which will not lead to further violation of the provisions of the Constitution of Russia, as well as the Court is able to fill a gap in the law.

In the legal literature, there is more than often a position, according to the logic of which the Constitutional Court of the Russian Federation is recognized as a "negative legislator". Such a concept is understood primarily as such activity of the Court, as a result of which the norms of law are deprived of legal force ^[12]. At the same time, it is also fair to say that the Constitutional Court of the Russian Federation performs the role of a "positive" legislator, thanks to which the rule of law and the legal system of Russia acquire new norms or their meanings.

From the standpoint of the empirical side of the problem under consideration, a feature of the law-making of the Constitutional Court of the Russian Federation is the mandatory nature of its legal positions.

V. B. Sychev identifies four types of implementation of constitutional control in terms of law-making by the Constitutional Court of the Russian Federation: positive, negative, corrective and interpretative law-making ^{[13, p. 225]}.

Positive law-making can primarily be understood as decisions consisting in the adoption of legal acts regulating the activities of the Court itself. For example, these are the Regulations of the Constitutional Court of the Russian Federation, Instructions on office work in the Constitutional Court of the Russian Federation and other acts. It seems that at the same time, one should not forget about the legal positions that directly create regulation with normative content ^[14].

Negative law-making is one of the most extensive types of implementation of constitutional control.

For example, in Resolution No. 17-P of September 17, 1993, the norms of the law were recognized as inconsistent with the Constitution of Russia in terms of the division of powers and subjects of jurisdiction between the federal center and the subjects of Russia and lost their legal force. Similarly, the norm of the criminal law of Russia was recognized as inconsistent with the Constitution of Russia in terms of establishing indefinite and undifferentiated restrictions on passive suffrage in relation to citizens sentenced to imprisonment for committing serious and especially serious crimes within the framework of Resolution No. 20-P of October 10, 2013.

The legal positions in which the Constitutional Court of the Russian Federation plays the role of a negative legislator act directly and literally, and the provisions of legal acts recognized as contrary to the Constitution of Russia lose their significance and role as an integral part of the Russian legal system. The repeal of the law by the body that adopted it is obviously not required in this case ^[15].

Corrective law-making consists primarily in the interpretation of a rule of law or a law that has become the subject of consideration by the Court.

In the Resolution of the Constitutional Court of the Russian Federation dated January 29, 2004, the verified norm of the law was not recognized as contradicting the Constitution in itself, while the Constitutional Court of the Russian Federation noted that the verified norm "in the system of norms cannot serve as a basis for worsening the conditions for the realization of the right to pension provision, since it does not prevent a citizen from evaluating the acquired ones before January 1, 2002 d. pension rights, including in the part concerning the calculation of work experience and the amount of pension according to the norms of previously existing legislation." In Resolution No. 25-P of May 19, 2020, the norm of the labor law was recognized as not contradicting the Constitution of Russia to the extent that, in its constitutional and legal meaning in the system of current legal regulation, it does not imply a violation of the Constitution when implementing norms in practice.

At the same time, interpretative lawmaking differs from corrective lawmaking, clarifying the norms of the Constitution, not ordinary legal acts.

N. S. Bondar rightly argues that the decisions of the Constitutional Court of the Russian Federation "envelop" the Constitution, making up with it a special kind of constitutional sources of law ^{[16, p. 77]}.

Cases of this category are among the most rarely encountered in the Russian legal system, which, however, does not affect their significance and role. In the already mentioned Resolution of October 31, 1995, the Constitutional Court of the Russian Federation interpreted the norms on amendments to the Constitution. In a Resolution dated April 12, 1995, the Constitutional Court of the Russian Federation spoke about the constitutional norm determining the number of deputies established for the State Duma of the Russian Federation in Article 95 of the Constitution.

Thus, the law-making activity of the Constitutional Court of the Russian Federation may directly arise from the exercise of constitutional control. The court determines binding legal regulations that become sources of law and does not require confirmation by any other authorities.

Examining the law-making of the Constitutional Court of the Russian Federation, it is important to turn to the concept of judicial (or judicial) discretion. According to A. V. Molotov in his dissertation for the degree of Candidate of Law, the role of judicial discretion in the activities of the Constitutional Court of the Russian Federation is extremely large, but at the same time its arbitrary use is dangerous, which means that the possibility of applying the discretion of the Court must meet a number of requirements: the presence of uncertainty of the legal norm or ambiguous practice of applying the norm, ensuring constitutionality and legality discretion, motivation and reasonableness of discretion ^{[17, p. 24]}. 

In turn, the decisions of the Constitutional Court of the Russian Federation combine the properties of legal acts of law enforcement and norm-setting and are sources of law of a special kind, located in the hierarchy of legal acts as close as possible to the Constitution of Russia: below it, but above all other legal acts.

Thus, the law-making function of the Constitutional Court of the Russian Federation is one of the secondary (not the main) functions of the Court, expressed in the harmonization of Russian law, the constitutionalization of branches of Russian law. Such a function cannot but be recognized as effective and valid, but at the same time one should not "get carried away" with the immeasurable development of the role and features of the Constitutional Court of the Russian Federation, since the Court at the same time has well-defined powers and performs the role of the supreme judicial body of constitutional control.