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THE  CONSTITUTIONAL  RIGHTS  OF  LEGAL  PERSONS  AND  THEIR  PROTECTION

BY  MEANS  OF  THE  CONSTITUTIONAL  LEGAL  PROCEEDINGS

Kolesnikova O.L.,  judge-assistant of the Constitutional Court

of the Pridnestrovskaia Moldavskaia Respublika

It is difficult to imagine modern economy and society with the participation of only persons, as the sole subjects of the private law, without their association into various groups (unions) and without connection of their personal abilities and property for entrepreneur and other economic activity not forbidden by the law. At the up-date stage of social development one of the basic legal forms of the collective participation of persons in a civil society shall be the presence of a legal person. The discussions concerning the questions about the nature of the legal persons, protection and maintenance of their rights, about equality of legal persons and persons have been conducted and are being conducted, but they never stop. The given problem consists of many legal aspects, each of which can be an independent theme of research. In our opinion within the framework of the given Article, it is possible to draw attention to the question, i.e. to the problem of the constitutional rights of legal persons and of their protection by means of the constitutional legal proceedings, having compared those separate approaches to its sanction which develop in the modern proceedings.

The Constitution of the Pridnestrovskaia Moldavskaia Respublika of 1995 does not directly contain the regulations concerning the legal status of the legal persons, determining their constitutional rights and duties, and providing constitutionally legal mechanisms of their protection. In our opinion we shall decide the several  questions: whether the constitutional regulations shall be distributed to the legal persons; at what degree they shall be distributed; whether it is possible to approve,  that the positions of Section II "The rights, freedoms, duties and  guarantees of a person and a citizen" of the Constitution of the Pridnestrovskaia Moldavskaia Respublika concern only the persons and cannot be applied to the legal persons (we do not mean a set of rights which bearers can be only the persons). In order to answer these questions we will address to the point of view of the authors of the brief comment to the Constitution of the Pridnestrovskaia Moldavskaia Respublika. In their opinion, at the interpretation and explanation of the norms contained in Articles of Section II "The rights, freedoms, duties and  guarantees of a person and a citizen" "we should pay attention to the fact that the separate norms concern exclusively the citizens (hereby we mean the citizens of the Pridnestrovskaia Moldavskaia Respublika), and others shall concern each person, i.e. the citizens, the foreign citizens and the persons without citizenship, who are the persons (a person) in general" [1]. We think, that the authors of the given brief comment completely deduce from the action of the constitutional norms stipulating the rights, freedoms, duties and guarantees of a person and a citizen, such group of the subjects of law, as the legal persons. In the given context (as an example) we can specify, that some time later the Supreme Court of Arbitration of the Russian Federation occupied the same position and in the Resolution of the supervising instance on the case No. К4-ì-7/2648 refused the legal person in the application of Part Two Article 54 of the Constitution of the Russian Federation having specified, that the given norm is in chapter 2 of the Constitution concerning the rights and freedoms of a person and a citizen, but not the legal person.

If to adhere to the above-mentioned point of view, it will be quite logical that both the European Court on Human Rights, founded for the purpose of maintenance of the observance of the obligations in accordance with the Convention on protection of human rights and fundamental freedoms from November 4th, 1950 and the Records to it (further the Convention), the legal persons shall not have the right to petition with the individual complaint. However, Article 34 of the Convention stipulates that the court can admit complaints not only from the persons, but from any nongovernmental organizations asserting the infringements of its rights recognized in the Convention. That is, the criterion of admissibility of the complaint from the legal person shall be the infringement of the rights belonging to the given person and protected by the Convention or Records to it. According to the practice of the European Court on Human Rights the legal person can complain on the infringement of such rights, guaranteed by the Convention, as the right to just judicial proceeding (the case of Stran Greek Refineries and Stratis Andreadis v. Greece) [2], the right to freedom of expression of the opinion (the case of Sunday Times v. United Kingdom) [3], the right to free use of the property (the case of Presses Compania Naviera SA and others v. Belgium) [4], etc. Thus, the European Court on Human Rights, admitting the complaints and considering the cases, shall not ground on the presumption that the regulations of the Convention on protection of human rights and fundamental freedoms can be admitted only concerning the person (the physical person) and, thus, shall give the valid opportunity of the international protection of the conventional rights both of commercial, and noncommercial organizations, that is, the legal persons.

As to application of especially formal approach to the definition of the contents and of the sphere of application of the constitutional norms (through the title of the corresponding chapter (Section) of the Constitution), in the opinion of V. Kuznetsov, it shall be inadmissible, as it does not only deduce the whole group of the subjects of law from the action of the Fundamental Law but consequently deprives the legal persons of the protection on the part of the constitutional norms. Besides, the similar approach can have further negative consequences, namely -the clearing of the legal persons of a number of the constitutional duties [5]. Actually, if to assert that  the regulations of Chapter II of the Constitution of the Pridnestrovskaia Moldavskaia Respublika concern only rights and freedoms of a person and a citizen, and are not distributed to the legal persons it shall be absolutely logical, that such constitutional duties as: the duty to observe the Constitution and the laws, to respect rights, freedoms, honour and dignity of people (Article 49); to preserve the environment (Article 50); to preserve cultural and spiritual heritage of the people (Article 51); to pay the taxes and the local tax collections established by the law (Article 52), – cannot be distributed to the legal persons.

In this connection there shall obviously arise  one more question if the Constitution of the Pridnestrovskaia Moldavskaia Respublika does not contain any mentions  about the legal persons and the constitutional rights are not distributed to them, and, hence, the duties stipulated in Section II « The Rights, Freedoms, Duties and Guarantees of a Person and a Citizen », whether then to the legal person there shall be distributed the general duty to observe the Constitution and the laws, stipulated in Section I "The Fundamentals of the constitutional system". Sufficiently there becomes obvious the idea that the duty to observe the Constitution as the supreme (fundamental) law of the state and which norms infringement shall be connected with the  infringement of the interests of the state, society and the citizens, – shall be universal and shall be distributed to all the subjects of legal relations, that is to the state and self-administrative organs, establishments and organizations, public associations, any officials, and also to physical and legal persons (including private), staying on the territory of the given state. However, in the Constitution of the Pridnestrovskaia Moldavskaia Respublika the given general legal principle is stipulated in the following wording: "The organs of state power and government, local self-management, officials, public associations and the citizens shall be obliged to observe the Constitution and the laws of the Pridnestrovskaia Moldavskaia Respublika" (Article 2). If at the analysis of the above-mentioned constitutional regulation to apply a formalistic approach then the instruction, obliging to observe the Constitution and the laws, shall be distributed only to precisely certain list of the subjects, namely to the organs of state power and government, local self-management, officials, public associations and the citizens. The legal persons – the subjects of the entrepreneur activity shall not enter the given list. Meanwhile, in the opinion of the authors of the brief comment to the Constitution of the Pridnestrovskaia Moldavskaia Respublika the given norm contains the duty to observe the Constitution and the laws by not only the listed subjects, but by "the legal persons irrespective of their pattern of ownership and organizationally  legal form" [6]. Thus, at the analysis of the constitutional formulas "the rights, freedoms, duties and guarantees of a person and a citizen" and "the public associations and the citizens shall be obliged to observe the Constitution and laws" by the authors of brief comment to the Constitution of the Pridnestrovskaia Moldavskaia Respublika there has been used a little bit different approach in the definition of the list of the subjects to which the action of the constitutional norms is distributed which creates constitutionally legal uncertainty.

In the opinion of V. Kuznetsov, the removal of the given uncertainty could be carried out by the constitutional courts at realization of concrete cases. That is the Constitutional Court, considering the complaint of the legal person, in the decision would create the precedent of application of the constitutional norms concerning the given person, thus, determining the circle of constitutional rights and legal interests of the legal persons [7]. However, in the Pridnestrovskaia Moldavskaia Respublika such judicial and constitutional practice has not been generated. Item 3 Article 87 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika stipulates, that "the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika on the complaints on the infringement of the constitutional rights and freedoms of the citizens on the requests of the courts shall verify the conformity of the law applied or subjected to application in a concrete case to the Constitution 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 or the statutory enactment". The given constitutional norm has become the ground for the refusal in admission to consideration of the complaint of the society with limited liability "Flora" on the infringement of the constitutional rights stipulated in Articles 36, 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika. In the Definition from October 7th, 2003 No. 07 - O/ 03 the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika has specified the following: "Item 3 Article 87 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika stipulates, that the subjects of application to the constitutional court in the form of the complaint on the infringement of the constitutional rights and freedoms of a person and a citizen shall be solely the citizens". Thus, the Constitutional Court as has also specified: "Taking into account, that the complaint proceeds from the legal person, but not from a citizen (citizens), the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika does not exclude the right to application on the given question of the founders (participants) of the society with limited liability "Flora" as the citizens" [8]. The given legal position being of the precedent value, has found the confirmation and development in the Definition of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika from October 28th, 2003 No. 08-О/03 about the refusal in admission to consideration of the complaint of the Department of State Undepartmental Security Service of the town of Bendery of the Ministry of Internal Affairs of the Pridnestrovskaia Moldavskaia Respublika on the infringement of its constitutional rights stipulated in Articles36, 37 of the Constitution of the of the Pridnestrovskaia Moldavskaia Respublika [9].

Thus, in the Pridnestrovskaia Moldavskaia Respublika solely the citizens (if the infringement of the rights has arisen the result of application of the law, statutory enactment) and the courts (with the request on the verification of the conformity of the law applied or subjected to application in a concrete case) shall have the right to apply with the constitutional complaint on the infringement of the constitutional rights and freedoms of the citizens. The legal persons as the associations of the citizens shall have no right to apply with the constitutional complaint both for the protection of the interests of the citizens for whose realization of the rights it has been created, and on the infringement of the rights of the association even if the goal of the given association is in collective realization of the constitutional rights of the citizens, its members (participants, founders). The founder (participant) of the legal person shall have the right to apply independently with the constitutional complaint, but he should ground (prove), that as a result of application to the given legal person of the law, statutory enactment his rights as the founder (participant) and the citizen have been infringed.

Concerning the given problem we should pay attention to the practical experience of the Russian Federation. The fact is that no legal persons are mentioned in the Constitution of the Russian Federation of 1993. However, as against the Constitution of the of the Pridnestrovskaia Moldavskaia Respublika, in the Constitution of the Russian Federation (Part Two Article 15) the general legal principle according to which any person shall be obliged to observe the Constitution and the laws includes in the list of the subjects of the organs of the state power, the organs of local self-government, officials, the citizens and their associations (should be necessary to specify, that the constitutional formula "the citizens and their associations" are also used in Article36 Chapter 2 "The rights and freedoms of a person and a citizen" of the Constitution of the Russian Federation stipulating to the given subjects the right to private property on the land). Obviously there arises the question: Whether the concept "the association of the citizens" is identical to the concept "the legal person" and whether the legal persons – subjects of entrepreneur activity refer to the concept "the associations of the citizens" with the reference to the constitutional norms, or whether "the associations of the citizens" should be understood as public organizations created for the protection of any constitutionally valid rights and freedoms.

The uncertainty of the given question has been removed by the Resolution of the Constitutional Court of the Russian Federation from October 24th, 1996 on the case about the verification of constitutionality of Part One Article 2 of the Federal Law from March 7th, 1996 "About entry of changes into the Law of the Russian Federation "About excises" in which the Constitutional Court has specified, that "…the joint-stock company, company and a society with limited liability, …inherently shall be the associations – the legal persons created by the citizens for joint realization of such constitutional rights as the right to use freely the abilities and property for the entrepreneur and any other economic activity not forbidden by the law…" [10]. It is necessary to specify, that by the given Resolution of the precedent value, the Constitutional Court of the Russian Federation has not only covered the legal contents of the concept "the association of the citizens", but has also resolved a number of the principle questions: First, whether the legal persons shall be the subjects of application to the Constitutional Court; second, whether the constitutional  regulations including the regulations about rights and freedoms of a person and a citizen shall be distributed to the legal persons. Considering the question about the admissibility of the constitutional complaint from the legal person, the Constitutional Court of the Russian Federation in the given Resolution has specified the following "Article 125 (Part 4) of the Constitution of the Russian Federation does not determine the circle of the subjects, competent to apply to the Constitutional Court of the Russian Federation with the complaints, leaving it at the discretion of the legislator. According to Part One Article 96 of the Federal Constitutional Law «About the Constitutional Court of the Russian Federation" the right to apply to the Constitutional Court of the Russian Federation with an individual or a group complaint on the infringement of the constitutional rights and freedoms shall be given to the citizens and to the associations of the citizens, whose rights and freedoms are infringed by the law applied or subjected to application in a concrete case. In the sense of the above-mentioned norm the citizens and created by them associations shall have the right to apply with the constitutional complaint on the infringement of the rights, in particular, on the infringement of the rights of the association, in case when its activity is connected with the realization of constitutional rights of the citizens, its members (participants, founders)" [11]. According to N.S. Bondar, resolving the given problem, namely the question about admissibility to apply to the Constitutional Court of the association of the citizens under the condition that the legislative norm applied or subjected to application  in the case of the applicants has infringed the rights of the corresponding association, the Constitutional Court of the Russian Federation has made mostly optimal from the point of view of the lawful function and social applicability of the institute of the constitutional control of the corresponding interconnected regulations of the Constitution of the Russian Federation and the Law "About the Constitutional Court of the Russian Federation" [12].

From the point of view of dynamics of the legal position of the Constitutional Court of the Russian Federation on the given question, the example can be the Resolution from October 12th, 1998 No. 24-П on the case about verification of constitutionality of item 3 Article 11 of the Law of the Russian Federation from December 27th, 1991 "About the fundamentals of tax system in the Russian Federation" in which the Constitutional Court of the Russian Federation has expanded the category "the association of the citizens", having included in it joint-stock companies and state unitary enterprises. In the given Resolution the Constitutional Court has specified the following: "As against the joint-stock company having the right of the private property on the property, "Nitsiamt" as the state unitary enterprise, is not the proprietor of the property but possesses the right to economic conducting. Meanwhile, according to Article 8 (Part 2) of the Constitution of the Russian Federation, in the Russian Federation the private, state, municipal and other patterns of ownership are recognized and protected similarly. The legal persons, both individual, and state (irrespective of their organizational and legal form), shall be the subjects of the constitutional duty to pay legally established taxes and tax collections, stipulated by Article 57 of the Constitution of the Russian Federation. The disputes on the complaints of the legal persons, arising at the definition of the conformity of the laws to Article 57 of the Constitution of the Russian Federation, mention a number of the constitutional rights of the citizens, in particular the right to equality, the right to private property, the right to free use of the abilities and property for the entrepreneur activity. As the constitutional duty to pay legally established taxes and tax collections shall be distributed to all tax bearers, state enterprises – the constitutional principles and guarantees at that degree in which these principles and guarantees can be applied to them are distributed to the legal persons" [13].

Thus, according to the precedent experience of the Russian judicial constitutional control, the Constitutional Court of the Russian Federation has worked out a number of the principle positions allowing the broadest circle of the legal persons to apply with the complaint on the infringement of the fundamental rights not only for the protection of the interests of the citizens, but in the interests of the legal persons even if it is created not for the purposes of realization of the constitutional rights of the citizens (state and municipal unitary enterprises). Thus, according to V. Kuznetsov, the Constitutional Court of the Russian Federation has expressed the opinion for the benefit of admissibility (with observance of a number of conditions) of application of the constitutional norms concerning the legal persons, having resolved thus the dispute, whether the regulations of Chapter 2 "The rights and freedoms of a person and a citizen" of the Constitution of the Russian Federation concerning the legal persons can be applied [14].

Summing up the above-mentioned, it is quite logical to make the conclusion that the legal persons as the equal subjects of lawful relations shall not be deduced from the action of the constitutional norms (including the norms regulating the rights and freedoms of a person and a citizen) for it can lead to such negative legal consequences as: clearing of the legal persons of the constitutional duties which shall infringe both the interests of the state and society, and the constitutional rights and freedoms of the citizens; deprivation of the legal persons of the protection on the part of the constitutional norms, which, undoubtedly, shall affect the other kinds of the legal guarantees of the legal persons (if to recognize that all the other kinds of guarantees, first of all, shall base on the constitutional guarantees); creation of the favourable circumstances for the growth of the state-administrative arbitrariness, wrong actions of the legislative and executive organs. The presence at the legal persons of the rights and freedoms guaranteed by the Constitution, shall transforms them into "the equal in rights partners" of the state, capable to present the later the legal claims, which, undoubtedly, promotes the confirmation of the legal state system. Besides we consider it possible to say that, enjoying the constitutional rights, the legal persons shall have the real legal opportunity to protect them not only in courts of arbitration and in courts of common jurisdiction, but also by means of the constitutional legal proceedings.

The literature

1. Конституция ПМР. Краткий постатейный комментарий: Норм. док. по отрасли права. – Тирасполь: ГУ "Юридическая литература", 2003. – С. 49.

2. См. дело Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994.

3. См. дело Sunday Times v. United Kingdom, 26 April 1979.

4. См. дело Presses Compania Naviera SA and others v. Belgium, 20 November 1995.

5. Кузнецов В. Конституция и права юридических лиц // Российская юстиция. 1997. № 4.

6. Конституция ПМР. Краткий постатейный комментарий: Норм. док. по отрасли права. – Тирасполь: ГУ "Юридическая литература", 2003. – С. 11.

7. Кузнецов В. Конституция и права юридических лиц // Российская юстиция. 1997. № 4.

8. Определение Конституционного суда Приднестровской Молдавской Республики от 7 октября 2003 года № 07–О/03 // Вестник Конституционного суда Приднестровской Молдавской Республики. 2004. – С. 77.

9. Определение Конституционного суда Приднестровской Молдавской Республики от 28 октября 2003 года № 08-О/03 // Вестник Конституционного суда Приднестровской Молдавской Республики. 2004. – С. 80.

10. Постановление Конституционного Суда Российской Федерации от 24 октября 1996 г. № 17-П по делу о проверке конституционности ч. 1 ст. 2 Федерального закона от 7 марта 1996 г. "О внесении изменений и дополнений в Закон Российской Федерации "Об акцизах" // Вестник КС  РФ. 1996. № 5.

11. См. там же.

12. Бондарь Н.С. Власть и свобода на весах конституционного правосудия: защита прав человека Конституционным Судом Российской Федерации.  – М.: ЗАО Юстицинформ, 2005. – С. 55.

13. Постановление Конституционного Суда Российской Федерации от 12 октября 1998 г. № 24-П по делу о проверке конституционности п. 3 ст. 11 Закона Российской Федерации от 27 декабря 1991 г. "Об основах налоговой системы в Российской Федерации" // Вестник Конституционного Суда Российской Федерации. 1999. № 1.

14. Кузнецов В. Конституция и права юридических лиц // Российская юстиция. 1997. № 4.




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