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PROTECTION †OF †THE †CONSTITUTIONAL †RIGHTS †AND †FREEDOMS †OF ††INDIVIDUAL †AND ††CITIZEN

We continue to get acquainted with the activity of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika. Today the Judge of the Constitutional Court Malskaia Lubov Georgievna offers the material about the protection of the constitutional rights and freedoms of† individual and† citizen.

MALSKAYA LYUBOV GEORGIEVNA

Malskaya L.G. was born on April 3rd, 1951 in the town of Sverdlovsk Lugansk Region Ukr. SSR.

Malskaya L.G. completed the full course of studies at the Historical and Juridical Faculty of Kishinev State University named after V.I.Lenin.

1978-1990 occupied the position of the Legal Adviser, Head of Deparment of Law at different industrial enterprises and establishments of the city of Kishinev.

1991-1993 occupied the position of Head of Department of Law at different industrial enterprises and esteblishments of the town of Tiraspol.

Since 1990 has been living in the Pridnestrovskaia Moldavskaia Respublika.

1993-1995 Assistant of Head Department of the Ministry of Justice of the Pridnestrovskaia Moldavskaia Respublika.

1995 appointed People’s Judge.

2000 appointed Deputy Chairman of the Tiraspol Town Court.

1994-2002 an Educator of Civil Law and Civil Court at Tiraspol College of Law and Computer Science.

††††††† Malskaya L.G. is the Judge of the Superior Qualification Class.

1990 decorated with the medal “Labour Veteran”.

††††††††††† 2001 given the Diploma of the President of the Pridnestrovskaia Moldavskaia Respublika.

††††††††††† October 12th, 2001 appointed the Judge of the Constitutional Court by the Order of the Third Congress of Judges of the Pridnestrovskaia Moldavskaia Respublika “To Appointment of the Judges of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika”.

“The General Declaration of Human Rights” adopted by the General Assembly of the United Nations Organization on December 10, 1948, the Convention “About Protection of Human rights and basic freedoms” from November 4, 1950, and the international pacts “About Civil and political rights” and “About economic, social and cultural rights” adopted by the General Assembly of the United Nations Organization on December 16, 1966 proclaimed the right of an individual for life, freedom, personal invilability. According to Article 26 of the international pact “About Civil and political rights” all people shall be equal on behalf of the law and shall have the right for equal protection by the law without any discrimination. In this respect any sort of discrimination shall be forbidden by the law and the law shall guarantee all the persons equal and effective protection against discrimination for the reason of a race, colour of the skin, sex, language, religion, political and other belief, national or social origin, property status, birth or any other circumstance. In accordance with the Article 13 of the Convention “About Protection of Human rights and basic freedoms” each person whose rights and freedoms have been infringed shall have the right for effective means of a legal protection on behalf of the state body even in the event if such infringement has been made by the persons acting as officials.

The recognition of the advantage inherent to all members of the society, equal inallienable rights and freedoms of citizens has become the reason for the cudinal change of social and political conditions in the former USSR. With the disintegration of the Soviet Union formation of separate independent states, democratization of the political regime has considerably expanded the range of social opportunities given to an individual by a society. The consiquence of it was the essential strengthening of the role of the rights and freedoms of individuals and citizens in the legal system of our state, their declaration on the constitutional level as the supreme value and stipulating in the Article 16 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika adopted by the national referendum on December 24, 1995. The embodiment into life of the idea of the lawful state based on the principles of the supremacy of the Constitution and laws and also the division of powers shall promote to the development of legal guarantees of fundamental rights and freedoms, formation of new mechanisms for protection of rights and freedoms of an individual, formation of a new body - the body of protection of rights and freedoms of individuals and citizens.

The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika shall be one of effective means of protection of fundamental rights and freedoms of an individual. Article 87 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, Articles 9 and 102 of the Constitutional Law “On the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika” stipulate the protection of the constitutional rights and freedoms of an individual as one of the main principles in the activity of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika.

In accordance with the above mentioned articles of our Constitution and the Constitutional Law “On the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika” †the Constitutional Court† by the complaints on the infringement of constitutional rights and freedoms of citizens and by the inquiries of courts makes the verification of a law applied or subjected to application to a concrete case on the legal conformity, and considers the complaints of the citizens on the infringement of rights and freedoms of individuals and citizens as a result of application of a law or a statutory enactment.

From the point of view of the interests of a concrete citizen the verification on the constitutionality of the law upon the complaint on the infringement of his constitutional rights and freedoms shall be the most effective means. It starts on the initiative of a citizen. As a petitioner he shall get a number of procedural rights, enter into close contact with the Constitutional Court. The petitioner in this case shall be directly intersted both in a limination of uncertanty in the question on the constitutionality of the law under consideration and in deprivation of its legal validity regarding the infringements of rights and freedoms of an individual.

Basicaly the task of protection of rights and freedoms of an individual and a citizen shall be realized by the Constitutional Court at realization by it of all kinds of legal proceedings. For example, in the vent of a dispute on the competence between the state bodies there can be possible default or illegal execution by them of some powers. Hence, the infringement of freedom of an individual in such cases is more probable than at normal functioning of the state government mechanism. Considering the dispute on the competence the Constitutional Court in this case shall restore normal ability to functioning of a state body ††and thus shall provide the impossibility of its infringement of the fundamental rights and freedoms of an individual.

Constitutional rights and freedoms shall be the fundamental elements of the constitutional relations in which , for example, the state and a citizen participate. For the citizen the sense of such relations shall be in getting of the protection of his rights and for the state it shall be in its duty to give this protection. The realization of the above mentioned rights has been stipulated in the Article 46 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

What kind of a complaint on the infringement by the law of constitutional rights and freedoms shall be considered admissable?

In accordance with the Article 103 of the Constitutional Law “On the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika” there have been stipulated two reasons for consideration of a complaint admissible:

a) if a law shall mention rights and freedoms of citizens;

b) if a law has already been applied or shall be subjected to application in a concrete case the consideration of which has already been completed or has been started in court or any other body applying the law.

In the constitutional legal proceedings the burden of evidence shall belong not only to the sides of the process but the sugnificant part of this sphere shall be carried out by the court which shall be determined by specificity of the dispute. Frequently the petitioner does not possess the knowledge in the sphere of law which shall be necessary for the estimation of the constitutionality of the regulations of the law challenged by him. Hence, he shall have the right to come into agreement with his representative or the lawyer wishing to take part in the court session for rendering legal aid to the citizen at protection of his infringed rights.

In comparison with other kinds of legal proceedings there shall be considered specific other evidentiary materials subjected to examination in session of the Constitutional Court (for example, information of examination, testimonies of witnesses and guests). The opinions of experts, first of all, shall be a source of information what sense the legal science puts into the regulations of the Constitution and the law examined by the court. Therefore, the main experts at consideration of the case in the Constitutional Court †upon the complaint shall be scientists, experts of different branches of the law. The results of the examination can have †an essential influence at making the decision on the case but shall never predetermine it.

What† shall be the final decision of the Constitutional Court on the results of the consideration of the complaint of a petitioner?

In accordance with Article 106 of the above mentioned law on the results of the consideration of the complaint on the infringement by the law of constitutional rights and freedoms of an individual and a citizen the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika shall adopt one of the following decisions:

a) about admition of the law or its separate regulations corresponding with the Constitution of the Pridnestrovskaia Moldavskaia Respublika;

b) about admition of the law or its separate regulations not corresponding with the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

In case of admition by the Constitutional Court of the law applied in a concrete case not corresponding with the Constitution of the Pridnestrovskaia Moldavskaia Respublika, the concrete case shall be subjected to revision by the competent bodies in the regular order. Besides, in case of admition of the law or its separate regulations not corresponding with the Constitution of the Pridnestrovskaia Moldavskaia Respublika all court costs of the citizens and their associations shall be subjected to compensation in the established order.

The decisions of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika as a result of which all the non-constitutional statutory enactments lose their force shall have the same sphere of action in time space and on a range of persons as statutory enactments and shall have the same obligatory value. Thus, the validity of decisions of court on a number of parametres can be equal to force of the law as they make changes into the system of legislation spreading their action beyound the broad range of subjects. These are the legal mechanisms of protection of the constitutional rights and freedoms and of an individual and a citizen in the Pridnestrovskaia Moldavskaia Respublika.

L. Malskaia

“Pridnestrovie”, No. 7 from 15.01.2003




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