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THE  CONSTITUTIONAL  LEGAL  PROCEEDINGS  AS  THE  INSTITUTE

OF  THE  PUBLIC  RIGHT  ON  GUARD  OF  INDIVIDUAL  LEGAL  INTERESTS  

OF  THE  CITIZENS

Gamazova M.T., judge-assistant of the Constitutional Court

of the Pridnestrovskaia Moldavskaia Respublika

The changes happened in the political and economic life of our society during the last twenty years, certainly, have become the ground for the changes in the legal system of the state. In our opinion, the brightest and the most important is that nowadays the individual right is spoken about and discussed not less than the public right.

Certainly, a citizen as a physical person, is, first of all, an individual subject of law, and at a greater degree he is interested in and concerned of his own individual legal interests. However, existence of one at the denying of the other should be impossible. According to Ju.A.Tikhomirov "it is obvious, that "the personal beginning" in a society should not be opposed to his public interests. Personal interest, both individual and collective, demands not only protection on the part of the state, but maintenance of its social orientation. "Its borders are moved up to horizons of publicity in the region, country, world". It is more important nowadays to find the balance of interests of the citizens, groups, minority and majority. In the sphere of the legal regulation the deciding  of the given  problem is achieved by means of parallel development, interaction of public and individual law" [1]. It should be difficult not to agree with the given point of view. Obviously, the division of the law into individual and public shall not mean their opposition.

Thus, in Article 185 of the Civil Code of the Pridnestrovskaia Moldavskaia Respublika, adopted on the basis of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, there has been stipulated that the transaction committed for the purpose of the obviously opposite fundamentals of the legal order or morality shall be "insignificant". If the transaction is the subject of the individual law "the fundamentals of the legal order" shall be definitely public – legally category. The necessity of the state control over the certain spheres of activity shall determine the interaction of individual legal and public – legal beginnings in the law. It is shown, first of all, in the  necessity of the registration of the entrepreneur activity (the citizen shall have the right to be engaged in the entrepreneur activity without formation of the legal person, in no event after the registration as an individual entrepreneur (item 1 Article 24 of Civil Code of the Pridnestrovskaia Moldavskaia Respublika); The legal persons (the legal person shall be subjected to registration in the organs of justice in the order determined by the law about the registration of the legal persons (item 1 Article 52 of the Civil Code of the Pridnestrovskaia Moldavskaia Respublika); licensing of the separate kinds of activity (the legal person can be engaged in the separate kinds of activity listed by the law, only on the ground of the special sanction (license) (item 3 Article 50 of the Civil Code of the Pridnestrovskaia Moldavskaia Respublika). There exist other circumstances evidently testifying to the presence of the public beginnings in the individual relations. 

Actually, both individual, and public law shall be the components of the legal system of the state, and the system of law, according to the traditional definition, represents "its internal structure which is expressed in the unity and coordination of the working in the state legal norms and, at the same time, the division of the law into rather independent parts" [2]. The specified unity and coordination are shown in the constitutionally stipulated opportunity of the citizens to apply for the judicial protection of the infringed individual rights. Thus, Article 46 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika guarantees each person the judicial protection of his rights and freedoms, the right of appeal in court of the illegal decisions and actions of the state organs, officials, public associations. Another Article of the Constitution stipulates, that the justice in the Pridnestrovskaia Moldavskaia Respublika shall be realized only by the court, and the judicial power shall be realized by means of the constitutional, civil, administrative, criminal and arbitration legal proceedings.

The recognition of the fundamental status of the Constitution for the legal system of the country, i.e. the fundamental character for the whole system of law in the Pridnestrovskaia Moldavskaia Respublika, shall be the indisputable fact. The Constitution contains the fundamentals of the law of the state on the whole which shall be the obligatory source of any division of law of the state. According to A.Avtonomov " as a rule, the researchers mainly focus the attention to the public-legal aspects of the Constitution and to their reflection and development in the current legislation. At the same time, however, the law since the times of Domitsiy Ulpian (the end IInd – the beginning of III centuries AD) was divided into the public and individual. According to Ulpian, the public law comprises the norms regulating the public system, and the individual law comprises the rules concerning the interests of the separate persons" [3]. However, according to A.Avtonomov "the output beyond the limits of the extremely public-legal sphere is planned in a number of the regulations of the Fundamental Law of Russia: thus, Article 2 of the Constitution of the Russian Federation proclaims that the Person "his rights and freedoms shall be the supreme value". The given formulation shows the orientation of the Russian Constitution not only to the regulation of the mutual relations between a person and the state, but to the maintenance of broad enough sphere for the independence of a person under the conditions when the main force of his activity shall become his individual interests" [4]. The above-mentioned can truly relate to the Constitution of the Pridnestrovskaia Moldavskaia Respublika which Article 16 stipulates the priority of rights and freedoms of a person, having proclaimed them the supreme value of a society and the state, and their protection shall be the duty of the state.

Besides, the Constitution of the Pridnestrovskaia Moldavskaia Respublika, in particular, stipulates the right of each person to property (Article 37). In interrelation with Article 4 of the Constitution, it stipulates the right to private property, and the right to free use of the abilities and property for the entrepreneur and other economic activities not forbidden by the law (Article 36), directly connected with the right to private property of the citizens. "The legislator ascertains the right to the entrepreneur activity as the absolute individual right of the person, providing to him the certain sphere of freedom and inviolability. Thus, according to the researcher, the right to freedom of the entrepreneur activity should not be considered only from the point of view of the relations between the entrepreneur and the state. According to E. Prasjuk, this right shall guarantee the entrepreneur the protection against encroachments not only on the part of the state, but on the part of any individual persons". "We think that the right to the entrepreneur activity should be understood as one of the competences of the constitutional status of a person, as the subject form of the concrete definition of economic freedom. The specific feature of the given right is its organic connection with the right to private property appreciably determining the specificity of entrepreneur powers. As a matter of fact, the principles of economic activity and legitimacy of all the patterns of ownership shall become the values characterizing the civil society and the lawful state"  [5]. All the above-mentioned confirms the fact of close and frequent cooperation between the individual law and the public law. In other words, the close interrelation of the right to the entrepreneur activity with the right to private property is available, and especially the realization of the entrepreneur activity testifies to the fact that the individual and public law are closely bound. The given regulation can be proved, in particular, by the complaints of the citizens on the infringement of their constitutional rights stipulated by Articles 36, 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika which have become the subject for consideration by the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika in 2004-2005.

Thus, in the complaint of the citizen Davydov A.A. there has been disputed the constitutionality of the separate regulations of the Order of President of the Pridnestrovskaia Moldavskaia Respublika "About the provision of monetary proceeds" in the current wording at the moment of the application regarding penal sanctions for inadequate collection of monetary proceeds.

The penalty represents the monetary collecting imposed for the administrative offence in cases and in the limits, stipulated by the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences (item 1 Article 26). The right to property, in accordance with the norms of the civil legislation shall be the legally provided opportunity of the proprietor at his own discretion to own, use and dispose his own property (Article 225 of the Civil Code of the Pridnestrovskaia Moldavskaia Respublika). The norms of the given code provide, that the money related to the things as to the objects of the civil rights shall be the property. Thus, imposing penal sanctions can be considered as the encroachment on the right of the citizens to property.

In the opinion of the applicant with coming into force of the Law of the Pridnestrovskaia Moldavskaia Respublika "About entry of changes and additions into the Code of MSSR about administrative offences, working on the territory of the Pridnestrovskaia Moldavskaia Respublika" the disputed norms of the Law have lost force. Hence, at the detection of the attributes of an offence as non-collecting available monetary means in the established order the norms of the Code of the MSSR about administrative offences, providing for the given structure of the offence, the administrative responsibility of the officials, should be applied to the guilty instead of the Order of the President of the Pridnestrovskaia Moldavskaia Respublika "About maintenance of collection of monetary proceeds" which establishes penal sanctions for the above-mentioned offence for the legal persons.

The applicant considers the result of application by the Department of tax militia of the Ministry of Incomes of the Pridnestrovskaia Moldavskaia Respublika in the city of Bendery of the regulations of the disputed Order has become the infringement of his constitutional rights stipulated by Articles 36, 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

And the citizen Zakharchuk O.A. has applied to the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika with the complaint on the infringement of her constitutional rights and freedoms arisen as a result of application of item 4 Article17 of the Law of the Pridnestrovskaia Moldavskaia Respublika "About small privatization".

Zakharchuk O.A. considers that the result of application of  the item of the above-mentioned norm providing that before the termination of the term of the contract of rent, the object of small privatization without the consent of the tenant or without cancellation of the contract with him, in accordance with the current legislation of the Pridnestrovskaia Moldavskaia Respublika, shall not be subjected to privatization, the joint society with limited liability "Master-Photo", whose founder she has been, has been deprived of an opportunity to privatize the premise rented by the State unitary enterprise "Knizhnaya Torgovlya" and the joint society with limited liability "Master-photo".

The applicant petitions the question about the conformity of Article 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, of item 4 Article 17 of the Law of the Pridnestrovskaia Moldavskaia Respublika "About small privatization" as a result of which application there has been infringed her constitutional right stipulated by Article 36 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

In accordance with the Civil Code of the Pridnestrovskaia Moldavskaia Respublika the entrepreneur activity shall be the independent activity carried out on the risk directed to the regular reception of profit from using property, sale of goods, performance of work or rendering of services.

Thus, the citizen Zakharchuk O.A., being the main  founder of the joint society with limited liability "Master-Photo" has no opportunity to realize the constitutional right stipulated by Article 36 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika regarding the free use of the property for the entrepreneur and other economic activity not forbidden by the law, and the joint society with limited liability "Master-photo" has been deprived  of the opportunity to privatize the rented premise.

According to the legal position of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika expressed in the Resolution of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika from May 18th, 2004 No. 04-П/04, such fundamental rights as the right to property, the right to free entrepreneur activity shall be necessary to interpret from the positions of both constitutional, and individual law, that is on the account of logic and legal connections of the given rights with the norms of both constitutional, and civil (individual) law. The certain degree of the unity of the fundamental economic rights and civil rights as the individual rights, means that there are limited the opportunities of the legislator on the change of the civil rights, adjacent with the constitutional.

Having considered the complaints in essence, the Constitutional Court has admitted:

- the separate regulations of the disputed Law, giving the Pridnestrovskiy Republican Bank and tax inspections with the right to collect penal sanctions from the enterprises, establishments and the organizations independently without the decision of judicial organs, which resulted in deprivation of a managing subject of a part of monetary means which meant  a part of the property and according to Article 37 of the Constitution no one can be deprived of the property as under the decision of the court,  not corresponding to Article 37 of Constitution of the Pridnestrovskaia Moldavskaia Respublika;

- item 4 Article 17 of the Law of the Pridnestrovskaia Moldavskaia Respublika « About small privatization », unreasonably limiting the constitutional right of a proprietor regarding charging the property order owing to which the citizen Zakharchuk O.A. has no an opportunity to realize the constitutional right stipulated in Article 36 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika not corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

And the Resolution of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika from June 28th, 2005 No. 04-П/05 has admitted  not corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika its Articles 18 ( Part One), 37 (Parts Two and Three) sub-item 4) Part Two Article 210 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences, regarding the imposing administrative penalties as the penalty for committing the offence stipulated by  Part Two Article 121 of the given Code, on the complaint of the citizen Khtema A.V. In no event after the declaration of the given Resolution regarding the norm admitted non-constitutional, imposing the administrative penalties as the penalty on behalf of the organs of internal affairs, organs of the state inspections and other organs (officials) authorized by the enactments of the legislation of the Pridnestrovskaia Moldavskaia Respublika, shall be possible solely in case of recognition by the infringer of the fault and the consent to pay the penalty voluntarily in the established order in  case of recognition no fault and absence of the consent to pay the established penalty, the question about  imposing collecting as the penalty, i.e. restriction of the citizen of the right to property, shall be subjected to the sanction in the judicial order

Besides, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika has been petitioned with the complaint of the citizen Grigorenko V.P. in which he disputes the constitutionality of Article 63 of the Housing code of the Moldavian SSR, providing the conditions of preservation of the premises for the temporary absent citizens.

In the opinion of the applicant, Article 63 of the Housing Code of the Moldavian SSR contradicts: the norms of Article 25 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika stipulating the right freely to move and choose residence within the territory of the republic, to leave the territory of the republic and to come back; Part One Article 42 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika guaranteeing the citizens the right to housing. Thus, there have been infringed such individual rights of the citizen Grigorenko V.P. as the right to housing and the right freely to move and choose residence.

By the Resolution from March 22nd, 2005 No. 02-П/05 the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika admitted not corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika its Articles 18 (Part One), 25, 42 (Part One), the regulations of Article 63 of the Housing Code of the Moldavian SSR, and the Decision of the Tiraspol City Court on the ground of which the citizen Grigorenko V.P. has been recognized lost the right to housing, shall be reconsidered in the order established by the law.

The above-mentioned evidently testifies that:

1 - the citizens shall, certainly, enjoy the individual interests guaranteed to them by  the constitutionally  stipulated individual  rights and according to the proceedings of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika actively realize them. So in the Message of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika about the condition of the constitutional legality adopted on May 27th, 2004, there has been specified, that "the great value for the citizens in the sphere of protection of their economic rights and freedoms shall represent the protection of the constitutional right to property according to which the proprietor at his own discretion shall possess use and charge the property belonging to him (Article 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika), and besides, the right to free use of the abilities and property for the enterpreneur and other economic activity not forbidden by the law (Article 36 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika)" [6];

2 - the above-mentioned constitutional rights require the protection which can be realized by means of the constitutional legal proceedings. According to item 3 Article 87 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika shall consider the complaints of the citizens on the infringement of rights and freedoms of a person and a citizen as a result of application of the law, statutory enactment. Article 102 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika" shall give the citizens, associations of the citizens, and other organs and persons whose rights and freedoms are infringed by the law, statutory enactment applied or subjected to application in a concrete case the right to apply to the Constitutional Court with an individual or collective complaint on the infringement of their constitutional rights and freedoms;

3 - the protection of the constitutionally guaranteed individual rights of the citizens relating to the individual legal interests of the citizens and regulated by individual legal institutes of law, would be impossible without constitutionally guaranteed constitutional, civil, administrative, criminal and arbitration legal proceedings, being, first of all, the institutes of the public law.

The activity of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika clearly testifies to the fact that in practice the individual-legal and public-legal institutes are directly in interrelation and interaction which is especially important and necessary in the cases of the constitutional protection of the infringed rights and freedoms of the citizens, and according to V. Grigoriev who has specified in his work "The practical aspects of the constitutional protection of the right to property and the legal positions of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika on the given question" – "the degree of safety of the right to property in the state shall be the parameter of its civilization for rights and freedoms of a person and a citizen are the supreme value of the society and the state" [7].

The literature

1. Общая теория государства и права. Академический курс, Т.2, под ред.  М.Н. Марченко.  М., 1998. С. 226.

2.  Хропонюк В.Н. Теория Государства и права. Учебник. 2-е издание.  М., 1997. С. 290.

3. Автономов А.  Сочетание публично-правовых и частноправовых начал в Конституции Российской Федерации // Конституционное право: Восточноевропейское обозрение. №  4 (45) 2003. С. 79.

4. Автономов А.  Сочетание публично-правовых и частноправовых начал в Конституции Российской Федерации. // Конституционное право: Восточноевропейское обозрение. №  4 (45) 2003. С. 80.

5. Парасюк Е.А. Становление и развитие конституционного права на предпринимательскую деятельность в законодательстве Российской Федерации // Международная электронная конференция "Конституционные права и свободы человека и гражданина как высшая ценность демократического, правового государства". www.confcourt.net/

6. Послание Конституционного суда Приднестровской Молдавской Республики о состоянии конституционной законности в приднестровской Молдавской Республике // Вестник Конституционного суда Приднестровской Молдавской Республики. 2004. С. 99.

7. Григорьев В.А. Практические аспекты конституционной защиты права собственности и правовые позиции Конституционного суда Приднестровской Молдавской Республики по данному вопросу / Судовий захист прав власностi. Матерiали мiжнародноi науково-практичноi конференнцii Одесса, 2004. С. 70.

8. Конституция Приднестровской Молдавской Республики.

Конституционный закон Приднестровской Молдавской Республики "О Конституционном суде Приднестровской Молдавской Республики".




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