Organization of Constitutional Judicial Control in the Subjects of Federation on the Examples of Russia and Germany

Arina Mikheeva, School of Governance and Politics

Key words: federalism, subject of the Federation, court, constitutional (statutory) justice, law, effectiveness

Abstract: This article is a comparative study in the sphere of constitutional justice. The article analyzes the organization of the constitutional judicial control in the subjects of the countries with the federal form of government. The paper discusses a possibility of applying the foreign experience of the constitutional justice organization in the subjects of the Russian Federation. The study is based on the constitutional systems of Russia and Germany.

Introduction: The problem of searching for the rational organization of the constitutional judicial control and its bodies has always existed in various countries of the world, which longed to become law-bound states. The main problem is that the institution of the constitutional justice in the subjects of Russia does not function properly. This article aims at taking a look on the actual issues of constitutional control organization in the subjects of federation and offer the best solutions. The methodological framework of the research is based on comparative-legal methods, analysis of the justice systems in Russia and Germany.

Main body: The efficiency of the constitutional (statutory) courts in the subjects is an acute question, related to the realization of the constitutional judicial control in Russia. The work of these courts has an important role for the observation of the federalism principles. But the tendencies, related to the constitutional courts in the subjects of Russia, differ from the courts in other countries with the federal form of government. At the current moment the legal system in Germany serves as a standart in the sphere of constitutional control implementation for Russia[2]. Taking into account the state structure, the experience of Germany is of large interest. It was the first country to have the constitutional justice both on the federal level, and on the level of states. We can consider constitutional-legal principles of the judicial system organization in Germany and Russia as identical. In both countries the sources of justice include the constitutions of the subjects: Constitutions (statutes) of the subjects in Russia and Constitutions of the states in Germany. The legislation of two countries provides for the possibility to create the additional form of rights and freedoms protection in constitutional (statutory) courts of the subjects (states). Germany is the federal republic consisting of 16 states. Each of them has the state constitutional court (the last formed state body of the constitutional judicial control began functioning in 2008[1]). In Russia the statutory courts exist only in 16 subjects out of 85. Not all the constitutions of the remaining subjects provide for the possibility to create constitutional courts. We can state that the number of such courts reduces. State authorities repeal the acts which envisage the creation of statutory courts. In Germany, on the contrary, we can observe the consecutive consolidation of the state courts positions. Their decisions acquire the nation-wide value. The number of appeals to the courts varies, but it is incomparably higher than in the Russian constitutional courts of the subjects. In some states of Germany the number of appeals exceeds 100 per year, whereas in Russia same courts review at the best 10 recourses per year. Another problem is the expenses on maintaining these judicial bodies. The constitutional courts of the subjects are financed from the subject's budget. Taking into account considerable expenses on maintenance of such courts, we can question feasibility of financing constitutional courts of the subjects in Russia because of the budgetary shortage. There is no such problem in Germany, as the constitutional courts do not work on the permanent basis. There is no permanent post of a constitutional state court judge, the judge's powers are performed concurrently. The procedural activity is also maintained by the executives of other courts. There is an opinion in the legal doctrine that such system creates contradictions: the judges follow the norms on the the constitutional courts and at the same time are subject to the general legislation on judges. This was the reason why Russia did not take this model. However, in Germany the performance of the constitutional court judge has higher priority in relation to other types of professional activity. Thus we are speaking not about delegation of authority to the general jurisdiction courts according to the American model of the constitutional control. It is a question of the development of the special status for judges, concurrently performing the functions of the constitutional court. Another possible option of solving this issue is to delegate the powers of the constitutional court of the subject to the Constitutional Court of the Russian Federation. This model works in the subjects of the Russian Federation, which do not have statutory court. Germany followed the same practice in the past. For example, the Constitutional Court of Germany performed the constitutional court authority in Schleswig-Holstein before this state established its own constitutional judicial control body. This option is more preferable and realistic due to several reasons. First of all, the judges of the Constitutional Court of the Russian Federation are more competent in reviewing such cases, as they specialize in it[3]. Second, there is a problem of the citizen's trust in courts. For many people the Constitutional Court of the Russias Federation is the body, which can restore justice. A consecutive increase of citizen's appeals proves this statement. Third, the issues of judicial administration belong to the federal level of power. So the subject cannot abolish the constitutional (statutory) court and independently delegate its judges' functions to the general jurisdiction judges. There exists the third possible way of solving the issue of the constitutional courts efficiency in the Russian Federation. Understanding this option requires taking into account the historical specifics of the constitutional justice formation in Russia. Earlier the statutory courts were created as an instrument of the subjects' independence and symbol of their state self-sufficiency, i.e. the political function was prevailing, rather than judicial. Today the political component has lost its significance. Due to this fact some experts recommend to change the status of the statutory courts to federal. They also suggest obliging subjects to create these courts. The idea is to concentrate the activity of the constitutional courts of the subjects on the human rights and not use it as a political instrument. Then this approach will allow to transfer the maintenance costs from the local bugets of the subjects to the federal budget. To implement this reform it would be better to follow the recommendations based on not the foreign, but the domestic experts conclusions. This will help to take maximum account of the pecularities of the national system of the constitutional judicial control.

Conclusion: The comparative analysis of the peculiarities of the constitutional judicial control in the subjects on the basis of such countries as Russia and Germany, helps to draw some important conclusions. First, when borrowing the foreign experience it is necessary to take into account the historical specifics of the constitutional justice formation in different countries and the peculiarities of the national systems of the constitutional judicial control. Second, it is necessary to be flexible in reforming the elements of the system, which have proved inefficient. That is why in this case the "reanimation" measures, aimed at preserving the constitutional courts of the subjects of Russia in their current form are not likely to be viable. Irrespective of the chosen option - to borrow and to adapt the foreign models or to develop the personal unique doctrine, the one thing is obvious: it should result in the transition to the effective system of solving the constitutional disputes by the corresponding independent and just bodies.

References

1. Alberto Lopez - Basaguren, Leire Escajedo San Epifanio. The Ways of Federalism in Western Countries and the Horizons of Territorial Autonomy in Spain, 2013. Volume 1, p.665.
2. Blokhin, P. D. Protection of fundamental rights by means of constitutional justice in Germany // Comparative constitutional review. 2014. N 3. Pp. 81 - 104.
3. Khudolej K. M. Do federal subjects of Russia need constitutional (statutory) courts? // Perm University Herald. Juridical Sciences. 2016. N 34. Pp. 391–401.