In detail...

The Constitutional Control as the Means of Maintenance and Security of the Constitutionality in the Pridnestrovskaia Moldavskaia Respublika

The constitutional guarantees in the true sense of this word represent means and ways of protection of the Constitution against any encroachments on it on the part of anybody. The main purpose of the constitutional guarantees (it is especially important to take into consideration at the initial stages of the development of a democratic country) consists in securing of subjects of a constitutional law, carriers of various individual and collective rights from those decisions and actions of the state bodies and officials which are unconstitutional in essence or do not correspond to the Constitution in form. That is why the problem of constitutionality always has a dominating value in the theory and practice of a lawful country, that, in its turn, conditions a role of the institute of protection of the Constitution in the mechanism of the country.

As specific means of maintenance and protection of action of the Constitution is the control which includes the control carried out by bodies of public authority, including inside the departmental control; constitutional and other kinds of the judicial control; public prosecutor's supervision; public control.

The constitutional control is a specific function of competent bodies of public authority in order to maintain leadership of the Constitution in the system of statutory acts, its direct action in the activity of subjects of public relations in the territory of the country.

The constitutional control can represent itself as the specialized mechanism of protection of the Constitution of the country as a legal act of the supreme validity.

Bodies of public authority which carry out the constitutional control as world practice shows, are

- head of the state, parliament or the government which carry out the constitutional control while realizing their basic functions or alongside with other functions;

- specialized bodies of the constitutional control in a form of bodies of the constitutional supervision;

- Judicial bodies;

- bodies of the local government.

The constitutional control which is carried out by the head of the state, parliament, the government or other bodies of public authority (excepting judicial), is substantially influenced by policy conducted by them. It can be qualified as the general (general-political) constitutional control.

For realization of the given kind of the constitutional control the specified bodies of public authority can create special subsidiary bodies and establishments (committees, councils, commissions, etc.) or the specialized bodies accounting chambers as bodies of parliamentary board alongside with parliamentary institute of omboodsmen (persons authorizes on human rights, public defenders).

Bodies of the constitutional supervision carry out the constitutional control on a constant basis decisions of which, as a rule, are not final. They usually have preliminary, advisory character (the Constitutional Council of France, former Committee of the constitutional supervision of the USSR, the Constitutional Council of Kazakhstan and others).

The judicial constitutional control is examination of constitutionality of acts, decisions and actions of subjects of the law. There are two types of the judicial constitutional control: 1) the constitutional control which is carried out by courts of the general jurisdiction, and 2) the constitutional control which is carried out by specialized constitutional courts.

The peculiarity of the first type of the judicial constitutional control is that constitutionality of objects of the control is examined by courts of the general jurisdiction by consideration of concrete cases according to usual procedure (decentralized control) or by the Supreme courts or their special chambers according to special procedure ( centralized control).

The peculiarity of the second type of the judicial constitutional control is that constitutionality of objects of the control is examined by special constitutional courts (the centralized control). They possess a special competence the constitutional jurisdiction which is carried out by means of independent legal proceedings the constitutional legal proceedings. Judicial constitutional jurisdiction and corresponding constitutional legal proceedings make up the constitutional justice..

The constitutional control in the Pridnestrovskaia Moldavskaia Respublika is an independent sphere of state-imperous activity. It is carried out not only by the Constitutional court of the Pridnestrovskaia Moldavskaia Respublika, but also by other state bodies. So, according to point 2 of article 70 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika the President is the guarantor of the Constitution and laws of the Pridnestrovskaia Moldavskaia Respublika, the rights and freedoms of the person and the citizen, it also provides exact execution of the Constitution and laws. In the order established by the Constitution it takes measures to protect the sovereignty of the Republic, its independence and territorial integrity, provides the coordinated functioning and interaction of all the bodies of the government. The President of the Pridnestrovskaia Moldavskaia Respublika according to the Constitution and laws develops the concept of home and foreign policy of the country and takes measures to realize it.

The text of the oath of the President (point 1 article 69 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika) concerns protection of the Constitution of the Pridnestrovskaia Moldavskaia Respublika as a duty of the head of the country. Points 2 and 3 of article 73 and also point 4 of article 80 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika give the President the important powers to realize the constitutional control.

The Supreme Soviet of the Pridnestrovskaia Moldavskaia Respublika, in its turn, in accordance with point 4 of article 62 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, has the right to consider decisions on :

) cancellation of acts of the local Soviets of People's Deputies (local representative bodies of the government) in cases of their not conformity to the Constitution and to laws of the Pridnestrovskaia Moldavskaia Respublika ; on the offer to elective bodies and officials of local self-management about reduction of the current legislation with their own legal acts;

b) dissolution of local Soviets of People's Deputies (local representative bodies of the government) and assignment of new elections in case of infringement of the Constitution, laws, decisions of the Supreme Soviet, acts of the President the Pridnestrovskaia Moldavskaia Respublika and refusal of reduction of the decisions according to the legislation by them;

c) dismissal from a post of the persons occupying the supreme state posts in the Pridnestrovskaia Moldavskaia Respublika , and also of members of the Cabinet in cases and in the order established by the Constitution and the law;

Participation in realization of the function of the constitutional control of courts by Offices of Public Prosecutor of the Pridnestrovskaia Moldavskaia Respublika is necessary. According article 81 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika judges while realizing justice are independent and submit only to the Constitution of the Pridnestrovskaia Moldavskaia Respublika and to the law (point) 1), the court, having established by consideration of the case the discrepancy of the statutory act of a state or other body with the Constitution or the law, makes a decision according to the Constitution and the law (point 3).

According to point 1 of article 91 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, Office of Public Prosecutor of the Pridnestrovskaia Moldavskaia Respublika carries out supervision of exact and uniform execution of the Constitution and laws by judicial bodies, ministries and departments, local authorities, institutions of local government, enterprises, organizations and establishments, public associations, officials and citizens.

However the leading position in the system of institutes of the constitutional control in the Pridnestrovskaia Moldavskaia Respublika belongs to the judicial constitutional control. It is understood as official activity of the Constitutional Court specially authorized by the Constitution and other acts on realization of its powers by means of special procedures with a view of protection of the bases of the constitutional system, fundamental laws and freedoms of the person and the citizen, maintenance of leadership and direct action of the Constitution in all territory of the Pridnestrovskaia Moldavskaia Respublika, the prevention of existence in the legal system of unconstitutional acts, interpretation of the Constitution and so on.

The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika as a body of the constitutional control, the first in the history of the Pridnestrovskaia Moldavskaia Respublika, was created on June, 12, 2002 on the basis of the changes brought into Constitution of the Pridnestrovskaia Moldavskaia Respublika by the Constitutional law of the Pridnestrovskaia Moldavskaia Respublika from July, 30, 2000 310- On Amendments and Additions in the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

According to article 86 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika will consist of 6 (six) judges, including chairman of the Court. The term of appointment of the judge of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika is 7 years.

The President of the Pridnestrovskaia Moldavskaia Respublika, the Supreme Soviet, the congress of judges of the Pridnestrovskaia Moldavskaia Respublika appoint two judges of the Constitutional Court each (point 2 of article 86 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika).

The competence of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika, unlike other supreme courts, is determined directly by the Constitution of the Pridnestrovskaia Moldavskaia Respublika in article 87. The Constitutional Court resolves cases on constitutionality of laws of the Pridnestrovskaia Moldavskaia Respublika (including constitutional), and also the legal acts accepted by the Supreme Soviet; legal acts of the President of the Pridnestrovskaia Moldavskaia Respublika, ministries, departments and other bodies of the government, local self-management in the Pridnestrovskaia Moldavskaia Respublika, including necessity of the resolution of disputes about the competence between bodies of various branches of the government; international contracts of the Pridnestrovskaia Moldavskaia Respublika; law practice; activity of elective bodies and officials of local self-management regarding decisions accepted by them and legal acts. The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika realizing constitutional control gives the conclusion about observance of the established order of promotion of accusation against the persons occupying supreme state posts in the Pridnestrovskaia Moldavskaia Respublika; about constitutionality of the signed international contracts of the Pridnestrovskaia Moldavskaia Respublika before their ratification or approval; about the contradiction of law of the Pridnestrovskaia Moldavskaia Respublika (including constitutional) to the conventional principles and standards of the international law, rules of the ratified international contract of the Pridnestrovskaia Moldavskaia Respublika; in other cases stipulated by the Constitution of the Pridnestrovskaia Moldavskaia Respublika. The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika according to inquiries of courts examines conformity of the law applied or subject to application in concrete business under complaints of infringement of constitutional laws and freedoms of citizens. The Constitutional Court also gives obligatory interpretation of the Constitution and constitutional laws of the Pridnestrovskaia Moldavskaia Respublika.

According to point 2 of article 88 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, the order of the organization and activity of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika, procedures observed by it and other questions, are adjusted by the Constitutional law. Such a law is Constitutional law of the Pridnestrovskaia Moldavskaia Respublika from November, 20, 2002 205--III " On the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika ".

For the analysis of the nature of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika there is a definition of the Constitutional Court (article I) initially formulated in the Constitutional law of the Pridnestrovskaia Moldavskaia Respublika" On the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika" It is defined as a judicial body of the constitutional control, is independent and independently carries out judicial authority by means of the constitutional legal proceedings. In the given definition the basic characteristics of the Constitutional Court are expressed briefly: its functional applicability (realization of the constitutional control); the status and a place in the system of division of authorities (judicial body); basic principles of activity (independent and independent realization of judicial authority that determines also a validity of acts accepted by it); the remedial form of activity (the constitutional legal proceedings).

The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika provides a mode of constitutionality, leadership and direct action of the Constitution in all territory of the country and is applied to all subjects of the law. Decisions of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika made on behalf of the state, operate in all territory of the state and have an obligatory validity. Decisions of the Constitutional court of the Pridnestrovskaia Moldavskaia Respublika are final, are not subject to the appeal and come in force immediately after their declaration. Decisions of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika operate directly and do not need confirmation by other bodies and officials. The validity of the decision of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika on a recognition of the act as an unconstitutional cannot be overcome by another acceptance of the same act. According to point 1 of article 88 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, acts or their separate provisions recognized as unconstitutional lose force. Law practice recognized as unconstitutional is to be stopped; corresponding decisions of the state bodies, local self-management and officials should be reconsidered in the order established by the law. According to a second part of article 97 of the Constitutional law of the Pridnestrovskaia Moldavskaia Respublika " On the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika ", from the moment of declaration of the Decision of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika about a recognition of a signed international contract of the Pridnestrovskaia Moldavskaia Respublika inappropriate to the Constitution of the Pridnestrovskaia Moldavskaia Respublika the signed international contract or its separate clauses is not subject to application, that is it cannot be ratified, authorized and cannot come into force for the Pridnestrovskaia Moldavskaia Respublika otherwise.

The Constitutional court of the Pridnestrovskaia Moldavskaia Respublika possesses a dual legal nature. On the one hand it is a body of justice. On the other hand the Constitutional Court is one of the supreme constitutional bodies of the government. Hence, the constitutional justice represents synthesis of two things. The contents is the constitutional control which is realized in the form of legal proceedings, in a result we deal with an independent kind of state control activity in the specialized legal proceedings. This form provides objectivity and impartiality of realization of the constitutional control. Thus, the constitutional justice is the supreme form of the constitutional control.

There are all bases to speak about special political and legal nature of the Constitutional Court as one of the supreme bodies of the government. The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika as a body of the government is characterized by realization of the constitutional control by it as an independent direction of state activity. The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika is one of the supreme constitutional bodies of the government and in the given quality ranks with other supreme constitutional bodies of the government the President and the Supreme Soviet of the Pridnestrovskaia Moldavskaia Respublika .

The definition "supreme" with reference to the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika in this case means, first, not a place in the hierarchy of the constitutional courts as the "lowest" bodies of the judicial constitutional control subordinated to other courts, included in the system of the constitutional justice, do not exist, and the role of this very court is in maintenance of constitutionality and their competence to resolve the constitutional disputes finally within the limits of the powers; second, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika is the supreme body of government of the Pridnestrovskaia Moldavskaia Respublika which operates alongside with the bodies of legislative and executive authority, and by virtue of its right nullify legal acts accepted by them, and in some respects it is above them.

In other words, from the institutional point of view the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika is one of the supreme state bodies, independently carrying out and working along with all supreme bodies of the government of the Pridnestrovskaia Moldavskaia Respublika . From the position of functional characteristic the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika represents the judicial body which is carrying out its activity in the form of the constitutional legal proceedings, and this very aspect if it is correlated with practice of the organization of the government by legislative definition of the legal nature of the Constitutional Court, prevails at present. Therefore a decisions of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika on the sense of the Constitution of the Pridnestrovskaia Moldavskaia Respublika are not acts of expression of political will; and only in this sense the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika does not consider political questions and its decisions always are decisions on the law (point 5 of article 87 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika ).

The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika acting as one of the parts of judicial authority carries out the judicial control over bodies of legislative and executive authority and also the judicial control over law practice of courts of the general jurisdiction and over arbitration court. This is the main feature of the constitutional justice and its difference from courts of the general jurisdiction and arbitration court. These qualities of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika condition its integration function as a role of the guarantor of the political peace in a society and in the country. However, the named function of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika also can and should be carried out only in the form of proceeding of the constitutional disputes and with observance of all remedial rules established by the law.

Control function of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika which finally determines its other functions is characterized by the following features. First, the control which is carried out by the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika is not preliminary but subsequent (exception is made for the signed international contracts of the Pridnestrovskaia Moldavskaia Respublika but not ratified and not authorized). Second, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika according to the current legislation has the constrained initiative, that is cannot raise initiate and consider any cases. For this purpose the request to the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika of a body authorizes or a person (persons) authoriezed is necessary.

The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika can render through realization of the constitutional control a significant influence on activity of bodies of public authority, first of all in their sphere of law-making by means of the fact of a cancellation of laws contradicting to the Constitution, by other statutory acts, their separate provisions, and also by interpretation of the constitutional standards while solving concrete cases and by way of official interpretation of the Constitution obligatory in this case for all subjects of the law.

The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika plays a special role in maintenance of the principle of division of authorities, in the system of obstacles and counterbalance. Solving conflictsand disputes between bodies of public authority at various levels the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika acts as a body of compromise, reconciliation, as a guarantor of the political peace and stability in a society and the country, as a keeper of the constitutional values, on guard of the constitutional system in the country.

Formation of the Constitutional Court in the Pridnestrovskaia Moldavskaia Respublika is a natural act. Leadership of the law and firm law order basing the Constitution is a necessary condition and an integral element of a sovereign, democratic and lawful state which recognizes, observes, and protects rights and freedoms of the person and the citizen. Such a state can not exist without an independent judicial body providing the constitutional control in a special procedure of the constitutional legal proceedings.

The constitutional justice in the Pridnestrovskaia Moldavskaia Respublika just gains its strength and authority in protection of principles of a lawful country, fundamental laws and freedoms of the person and the citizen, in examination of constitutionality of laws and other statutory acts, including resolutions of disputes on the competence between bodies of various branches of the government, in maintenance of direct action of the Constitution.

The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika aspires to become the major institute of statehood, to function fruitfully and steadily remaining on the firm positions of the constitutional law, to bring up respect for the Constitution of the Pridnestrovskaia Moldavskaia Respublika on the part of all state bodies, institutions of local government, officials, and citizens.

Karamanutsa V.I.,

Judge of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika

Notes:

1. ( , 310- 30 2000 ). : , 2000.

2. . . , .

3. 20 2002 205--III . , 2002.

4. .. (1991-2001 .): . ., -, 2001.

5. .. . ., 1998.

6. .. . .1: . . ( ). ., , 2001.

7. .. . . .: -, 2002.

8. .. : , , . 2- .

., , 2000.




|Organisation and activity |Law fundamentals |Members |Decisions|
|Administrative staff |News ||Publications |Photoarchive|
|Contacts |Links |Begin |Search|
|Urgent event|