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In detail...

CONSTITUTION - WILL OF THE PEOPLE


On the eve of Constitution Day of the Pridnestrovskaia Moldavskaia Respublika President of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika, Candidate of Jurisprudence Vladimir Anatolievich Grigoriev gave interview to the correspondent of the newspaper "Pridnestrovie".


Vladimir Anatolievich, Constitution is the integral attribute practically of each state, and a symbol of the nation. Could You tell us, please, what influence Constitution of our Republic has on the further development of the pridnestrovian society and states on the whole?

Constitution is the primary necessity for the state formed on the basis of supremacy of the law.. Constitution of the Pridnestrovskaia Moldavskaia Respublika in the legal form establishes the fundamental principles of the structure of the society and the state. This document pawns legal fundamentals on management of all public processes and gives the reference points of legal regulation in all spheres of public relations.

In order to make Constitution working it shall be legitimate. Constitution is considered legitimate when it is adopted in the lawful way. Our Constitution is surely legitimate as it has been adopted at the national referendum which expressed the will of the multinational pridnestrovian people.

The Constitution of the Pridnestrovskaia Moldavskaia Respublika has fixed such fundamental values, as democracy, priority of rights and freedoms of the person. It has outlined public relations with the frameworks of the constitutional safety. As long we are in these frameworks, our state shall have prospects of successful harmonious development. The process of development of the free civil society based on the constitutional principles of market economy, democratic character of political system, equality, observance of human rights is constantly developing in our Republic, so we should know and respect the Fundamental Law of our Republic.

And how does the Constitution of our republic correspond with the norms of the international law? Are there any contradictions or not?

First of all, I would like to note, that there are no special contradictions between the Constitution of the Pridnestrovskaia Moldavskaia Respublika and the international law. Eleven years ago, when our Constitution was written, the conventional principles and norms of the international law were the major reference points. And we based on the international norms and on the developed international-legal practice. Actually all norms of our Constitution almost completely coincide with the international pacts on human rights.

Besides our Constitution with its fundamental values recognizes, that the conventional principles and norms of international law shall be the integral part of the legal system of the Pridnestrovskaia Moldavskaia Respublika. Therefore, the Constitutional Court, making decisions, bases not only on the Constitution, but refers to the international law. Though frankly speaking all these references have optional character .

During the last 11 years norms of our Constitution were repeatedly exposed to updating. Do you think it is impossible to avoid it?

As the judge of the Constitutional Court, but not the politician I shall answer your question exclusively from the legal point of view. Our Constitution contains the norms determining the order of entry of the constitutional changes. Hence, they can exist. Whether these changes are necessary - this question does not refer to the Constitutional Court, but it does refer to the politicians at power. But at the same time they should estimate all legal factors, among which the first place should occupy the factor of stability of the Constitution. It is impossible to change Constitution for the sake of a momentary political conjuncture.

During the 11 years the Constitution of our state was entered with changes in 1998, 2000 and 2005. Thus, the initial wording of the Constitution has already updated practically on 60 %. And for comparison the Constitution of the Russian Federation which was adopted in 1993, was not entered with any change.

In my opinion, decision of many disputable questions can be found within the limits of the working Fundamental Law, using its internal potential and not subjecting the wording with changes with frequency, characteristic for usual laws. And modification in the Constitution is admissible solely when there appears public expediency. We should remember, that change of the Fundamental Law should not be reasoned by subjective desires and interests of separate politicians. According to the ancient philosopher Platon: " The state in which the law is not valid or is under someone's authority is so near its destruction ". Changes in the Constitution should be will of the majority of the citizens.

And nevertheless before finishing speaking about amendments in the Constitution I would like to to address to You not as the President and the Judge of the Constitutional Court, but as to the expert studying our Constitution during almost 5 years - the term during which you are the Judge of the Constitutional Court. Whether, in your opinion, there are any blanks, lacks in our Constitution which require change?

First of all, I would like to note, that each person has the right to consider, that there are lacks in it and can criticize it. Personally I do not seeany lacks in our Constitution. On the contrary, I would like the current Constitution to be unchangeable as long as possible, because force of the Constitution is in its stability.

As for blanks they are inevitable. Our Constitution is long enough - it has 106 Articles, not including transitive norms and regulations. And to overcome blanks, there exists a number of alternative ways. It, for example, is interpretation of the Constitution and its constitutional laws, which is studies by the Constitutional Court, global updating of the current legislation, creation of effective organizational structures and new forms of control. The whole constitutionally legal legislation develops constitutional regulations which have not been covered directly in the Constitution. Thus, I believe, lacks in regulating of constitutionally legal relations is corrected.

Whether the Constitutional Court can resist to modification in the Constitution, for example, if they contradict fundamentals of the constitutional system?

Our Constitution does not provide such opportunity. But for the purpose of maintenance of the legal protection of the fundamentals of the constitutional system it is worthy to address to the experience of Ukraine where the order of modification in the Constitution provides obligatory decision of the Constitutional Court as the organ of the constitutional control, about conformity of amendments to the fundamentals of the constitutional system of the states, to the rights and freedoms of a person and a citizen. Such order confirms that legislation should be the voice of reason, and the Judge should be the voice of the law.

Besides for the purpose of maintenance of true democracy, conformity of the constitutional amendments to bases of the constitutional system and to the norms of international law, in my opinion, projects of the corresponding laws should be developed by the competent constitutional commissions created on equal footing by the three branches of power. Projects of these laws should be nationally discussed in cities and districts of our country, in mass media, in labour collectives, public associations and organizations. Only in this way we can provide true democracy in our country.

Vladimir Anatolievich, whether the Judges of the Constitutional Court as experts and keepers of the Constitution, can give any recommendations?

If to speak about choice of the form, any processes, not concerning verification of statutory acts judges can express their opinions. Not as judges, but as experts of the constitutional law.Some of our Judges work as educators at higher educational institutions, publish scientific and practical articles about constitutionalism. So until a statutory act is not passed and no legislative process is developing, in my opinion. the judge can express his opinion on various models, - but only in legal limits not mentionin powers of the Constitutional Court.

According to the constitutional norms , the President of the Pridnestrovskaia Moldavskaia respublika shall be both the guarantor of the Constitution, and rights and freedoms of a person and a citizen. What real opportunities, in Your opinion, has the President for this purpose?

As the guarantor of the Constitution the President has levers of influence on all the organs of the government: on the legislative process whose participant he is; on the executive power which he heads; on judicial power from organizational point of view, that is his participation in appointment of judges and, certainly, as the guarantor of independence of judicial power. Hence, on the whole, the President shall influence protection of rights and freedoms of the citizens.

If to answer this question more particularly the President develops bills including bills on protection of rights and freedoms of the citizens, and directs them to the Supreme Soviet. It is necessary to say, that there are few bills in which rights and freedoms of a person would not be mentioned.

And the President has the right of the veto. And when the President finds in bills infringement of rights of the citizens, he applies this very strong constitutional right.

We should not forget that the President as the Head of the executive power shall supervise ombutsmen departments: the Ministry of Internal Affairs, the Ministry of State Security and other organs, called to provide legality, social order, protection of rights and freedoms of the citizens of our state.

And, certainly, the President as the guarantor of the Constitution, and of rights and freedoms of the citizens, shall be the subject of application to the Constitutional Court.

And who except the President is called to guarantee observance of the constitutional rights and freedoms of the citizens of our state? Is he the unique guarantor?

Norms of our Constitution stipulate the duty of the state and its organs to provide real action of legal guarantees of a person. The general constitutional principle in the given case is the regulation that "recognition, observance and protection of rights and freedoms of a person and a citizen shall be the duty of the state ". Thus, the duty to guarantee observance of rights and freedoms of the citizens extends not only on the President, but on all the organs of the government, on the three branches of power - legislative, executive and judicial. The same duty is allocated on the organs of local self-management.

Vladimir Anatolievich, can the Constitutional Court as the organ of the government protect trully rights and freedoms of a citizen?

First of all, it is necessary to note, that the Constitutional Court does not judge a separate person, it judges laws. And laws are written for thousands of people.

Thus, when we admit, the law or its separate regulations unconstitutional from the point of view of infringement of the rights and freedoms of a person, we do not protect a person, but thousands of people.

And to be more concrete, when we admit an act or its separate regulations unconstitutional, we order courts to reconsider the case of the citizen in direction specified in the resolution of the Constitutional Court.

In the ratio of various categories of cases considered by the Constitutional Court, what place is occupied by the complaints of the citizens? What special things are mentioned in the complains of the citizens of our Republic?

Cases arising in connection with applications of the citizens, occupy a significant part in total of the cases considered by the Constitutional Court. In our republic, as against many other countries, citizens have the right to individual and collective constitutional complaint. In other words, at observance of the certain conditions fixed in the Constitution and in the constitutional law about the Constitutional Court, the person shall have an opportunity to apply in the Constitutional Court and to receive real protection of the constitutional rights.

We receive many complaints on infringement of the right to property and the right of free enterprise activity. Separate place occupy complaints on the infringement of the constitutional right to remedy. Unfortunately, at present the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences contains a number of unconstitutional regulations regarding stipulating extrajudicial order of withdraw of the citizens to administrative responsibility in the form of penalty and we have to correct them. The Constitutional Court has repeatedly stated its legal position that it shall be inadmissible to impose penalty sanctions on the citizens without court decision as it directly contradicts requirements of Article 37 of the Constitution which specifies that no one can be deprived of his property, otherwise on court decision.

On November 21st 2006 you said on air, that complaints of the citizens arrived at the Constitutional Court, are considered during the term of 3 months. Don't You think it is a rather long term for consideration?

It is impossible to slow down or accelerate specially consideration of cases in the Constitutional Court. All cases are considered during the terms stipulated by the constitutional law about the Constitutional Court, and in the order of strict sequence. We do not know another principle. The calendar of consideration of cases is made under the strict order, - no priorities should be given to anybody. The President, the Supreme Soviet, the same as the citizen are in one line and should wait for the day of consideration of application.

Vladimir Anatolievich, as we have mentioned the question of judicial protection of rights and freedoms of the citizens of our state, would You like to comment in what way it corresponds with the constitutional principle of independence of judicial power?

In modern democratic, lawful state each citizen should have the real opportunity to protect his infringed rights and freedoms, guaranteed to him by the Constitution. And it is very important that the judicial power should be represented by independent courts could realize true justice in the name of the state and in the order established by the law. It is impossible to suppose the slightest opportunity of extraneous intervention in their activity and to influence the Judges. Guarantees of independence of Judges, their legal protection should be real and stable, including measures of material, social maintetance, corresponding to their high status. The higher is authority of court and justice on the whole, its independence in relations with representative and organs of power, the higher is the level of legality and democracy in the country, more reliably rights and freedoms of a person and a citizen are protected.

Is it possible to say, that the Constitutional Court is really independent organ or whether any other organs of power can influence or pressure it?

The Constitutional Court is out of politic. Judges of the Constitutional Court are not engaged in political activity. None of them is a member of any political party, and I can say absolutely authentically, that there are no political debates, political approaches and reasons of expediency in our work. We consider only legal criteria.

Making decisions, the Constitutional Court coordinates them with nobody. The court independently decides all questions, and it is impossible to coordinate anything. The Constitutional Court is not the Court which acts in the structure of one judge on whom it is possible to put pressure. The Constitutional Court comprises six judges elected on the parity basis by the three branches of power. They are all independent and are dependent on the Constitution only.

As for pressure... What should we mean? In our proceedings participate: the plenipotentiary of the President, the plenipotentiary of the Supreme Soviet, representatives of other organs of power and citizens. Each side has the right to state the legal position. Whether it is possible to name these statements as pressure upon the Constitutional Court? Hardly. The process is competitive. We hear opinion of each side. We perceive any logic and worthy argument, but it is impossible to say, that we are subjected to pressure of any side. In my opinion, it is quite enough to analyse our resolutions.

The Constitutional Court of our republic has been acting for almost five years. Would You be so kind to explain what influence its activity has on formation of the constitutional order in our state?

The Constitutional Court has been functioning for five years, but the constitutional justice is still the new phenomenon for our state. Activities of the Constitutional Court are directly directed on establishment and strengthening of the constitutional order in the society. The Constitutional Court is the bearer and the mechanism of maintenance of the supreme constitutional values. First, the Constitutional Court shall be the guarantor of supremacy of the Constitution as the fundamental law of the state on the entire territory of the republic. Second, the priority role in activities of the court is given to protection of the constitutional rights and freedoms of the citizens irrespective of their social status and political views. And, at last, third, it is consecutive activity of the court on perfection of national legal system according to the constitutional principle of division of powers which is the fundamental state legal element.

The Constitutional Court by decisions containing legal positions not only restores constitutionality, but also actively promotes perfection of legislative base, limiting it with frameworks of constitutionally legal field. Estimating significance of activity of the Constitutional Court we should realise, that the Constitutional Court does not estimates political expediency, and reveals the constitutional legitimacy.

I have mentioned the main streams of activities of the Constitutional Court, influencing on the development of the constitutional order in the republic.

Vladimir Anatolievich, according to our Constitution obligatory interpretation of its norms can be given only by the Constitutional Court. Could Yoy tell us, please, how many decisions on interpretation of the constitutional norms were adopted by the Constitutional Court?

Well, the Constitutional Court is the specific organ of the judicial authority possessing special powers on official interpretation of the Constitution and constitutional laws. Resolutions of the Constitutional Court assist in framework of the current constitutional model to eliminate and concretize separate uncertainties in understanding of the constitutional norms. For the period of the activities the Constitutional Court has made three Resolutions on interpretation of the constitutional norms.

And what Resolution of the Constitutiona Court about interpretation of the Constitution, in your opinion, has caused the greatest interest?

This year great interest and resonance has been caused by the Resolution of the Constitutional Court on the case about interpretation of separate regulations of Articles 60 and 74 of the Constitution. Having give the corresponding interpretation, the Constitutional court has precisely determined the state positions not compatible to the status of the deputy of the Supreme Soviet and other representative organs in the Pridnestrovskaia Moldavskaia Respublika. The court has proved the conclusions by the ground that concentration of functions of various divisions of power in one organ, as well as overlapping of the deputy mandate with occupation of position on state service, is impossible.

In a democratic lawful state organization and realization of imperous powers is based on the principle of division of powers. This given principle provides decentralization of management which makes} it more adapted to protection of interests of the population. I would like to repeat once again, that the Constitutional Court in the decisions consistently defends action of the constitutional principle of division of powers as the bases of organization and activity of the lawful state at which each branch of power shal;l be independent and sovereign within the limits of the powers, should not interfere the competence of other authorities. Besides the constitutional rule about inadmissibility of overlapping of the deputy mandate with the state service is caused by the ground that the deputy should be independent on influence of the state organs, establishments and their officials.

I would like to note adherence to principles of the Supreme Soviet and Prosecutor's Office in their aspiration to execute the given decision of the Constitutional Court. The Supreme Soviet has offered local representative organs to decide independently the problem of overlapping by deputies of their powers with employment{occupation} of state service. However not all deputies of local councils have unanimously apprehended necessity to execute the requirement of the Constitution, and the Supreme Soviet as the higher organ has been compelled to adopt Resolution about cancelling of decisions of separate local councils regarding the statement of powers of People's Deputies on corresponding constituencies.

And whether it happens, that other courts or organs of government do not execute decisions of the Constitutional Court? If it happens, how to get through it and whether it is necessary in this connection to create the special organ which would strictly supervise observance of resolutions of the Constitutional Court?

We have such organ, it is Prosecutor's Office. And for what does it exist for? The Prosecutor's Office is obliged in case of infringement of any statutory regulation, proceeding from the decision of the Constitutional Court, to protect the person, to apply in court with the requirement to correct it. Therefore it is not necessary to create any new organ. The Prosecutor's Office is capable to act in this direction.

Vladimir Anatolievich, who in our state, in Your opinion, is to be responsible for development of the citizen's sense of justice?

Development of sense of justice and of the level of constitutionally legal conscience in our society should become one of the major state tasks. Absolutely all organs of the government within the limits of their competence should draw attention of the public and, first of all, of the youth to the Fundamental Law of our state as the authority of the Constitution shall be the authority of the state. The citizens should know their rights and should apply them for self-realization and improvement of quality of life.

For the purpose of popularization of the Fundamental Law of our state, especially among the young, in 2005 the Constitutional Court prepared and issued Children's edition of the Constitution for primary children. Do You continue the work in this direction?

For the purpose of popularization of the Fundamental Law of our state, especially among the youth, the Constitutional Court under patronage of the President held on December, 21st the Student's Conference " Constitution of the Pridnestrovskaia Moldavskaia Respublika is the Fundamental Law of our state '. Students of five legal HIGH SCHOOLS of our republic have taken part In this conference.

For the purpose of carrying out of the analysis and selection of the best reports presented by the participants of the Student's Conference, Expert Board has been formed which included representatives from the Constitutional Court, the Supreme Soviet, the Ministry of Education, the Ministry of Justice and all HIGH SCHOOLS. The authors of the best five reports have been selected.

Besides for the purpose of propagation of the Fundamental Law, popularization of the constitutional legal proceedings in our state and perfection of professional skill of the officials of the Constitutional Court, on December, 19th we have organized "the role play", modelling the constitutional process. The officials of the Constitutional Court have simulated the constitutional process which subject was conditional consideration of the application of the citizen about protection of his constitutional rights and freedoms.

It is, undoubtedly, important and useful for the young generation of our republic. Besides I would like to note, that regularly published issues prepared by the Constitutional Court, are of great importance for development of legal conscience of the population and make valuable contribution to development of our science. What can You tell us about the work in this direction?

For almost five year period of its activity the Constitutional Court has issueed a great number of editions devoted to our Constitution, constitutional control, rights and freedoms of a person.

On the occasion of the tenth anniversary of the Constitution the collective work of judges and officials of the Constitutional Court - "Comparatively legal analysis of the constitutions of the European states " has been published.

This year the Constitutional Court has founded the international scientific and practical magazine " Modern constitutionalism ". Its purpose is creation of information space for discussion of most urgent problems in the field of modern constitutionalism.

Scientific and practical articles of judges and officials of the Constitutional courts of scientists, jurists from different states are published in the journal, scientific and practical research in the sphere of constitutional law, domestic and foreign experience is covered in it as well.

Editorial Board comprises judges of the Constitutional Courts and scientific jurists from Bulgaria, Russia, Serbia, Ukraine and, certainly, from our state. The journal is issued twice a year in Russian, English and German languages.

On June, 1st 2006 on the eve of the fourth anniversary of activity of the Constitutional Court the first issue of the journal was published: included articles of our collegues - Judge of the Constitutional Court of the Russian Federation, Professor Bondar N.S., Chairman of the Constitutional Court of Republic of Buryatiya Budaev K.A., Chairman of the Constitutional Court of Komi Republic Gavryusov Yu.V., Chairman of the Constitutional Court of Kabardin-Balkar Republic Gelyakhov Ŕ.S. and others.

On December, 1st the second issue of the journal was published which included articles of Judges of the Constitutional Courts and such well-known scientists-jurists as: Judge of the Constitutional Court of the Russian Federation, Professor Ebzeev B.S., constitutional scientist of St.-Petersburg University of the Ministry of Internal Affairs of the Russian Federation, Assistant Professor Kuzmin A.V., Lawyer of trade union of workers of Israel Loui Zreyk and others.

The electronic version of the journal is placed on the site of the Constitutional Court. We believe, that the electronic version of the journal will provide more perfect system of academic dialogue, openness for all persons interested in discussions, availability and mobility of each participant. We hope, that our journal will occupy a worthy place in the journal periodical press covering problems of the constitutional law, and will become popular not only in our republic, but also abroad.

It is necessary to note, that owing to the Constitutional Court the unique edition - Constitution of our state in the six languages has been published. Could You tell, please, about it in details.

The constitution was published in the six languages - Moldavian, Russian, Ukrainian, English, German and French, in firm reliure, with stamping gold foil, in vacuum packing.

Till present the Constitution of our state has not been published in such format. The necessity of such edition has arisen for absolutely objective reasons. We have taken into consideration great attention to our republic on behalf of other states, international community, in fact arriving in our republic representatives, experts, specialists and other officials are interested not only in political problems of the status of our state, but in its legal bases and, first of all, in its Constitution.

It's a pity but they had to get acquainted with the Fundamental Law of our state only in our official languages - Moldavian, Russian, Ukrainian, that, naturally, caused certain difficulties. Taking into consideration the given circumstance, the Constitutional Court has initiated edition of the Constitution in the six languages for the purpose of popularization of Fundamental Law of the Pridnestrovskaia Moldavskaia Respublika not only on the territory of the state, but also abroad.

Vladimir Anatolievich, nevertheless, Judges of the Constitutional Court are out of politics, I would like to put the question on politics.. On September, 17th the referendum took place in our republic in which 97 % of the voted citizens have supported independence and subsequent free integration into the Russian Federation. Whether the results of the referendum, in Your opinion, will influence the attitude of the world community to our state?

Yes, it is necessary to note, that the world community, obviously, being afraid of the possible mass "parade of sovereignties", has occupied unfairly hard line concerning Pridnestrovie. But our republic de facto has been developing during 16 years and has deserved the right to be recognized as the independent subject of international legal relations.

The referendum is one of the mechanisms which the citizens of our republic can apply on the way to our goal - international recognition. And on September, 17th the citizens supported the sovereign, independent state with the subsequent establishment odf associated relations with the Russian Federation.

I am confident, that the world community, should take into consideration people's opinion which has independently chosen the way of development as it is the true democracy. The referendum and its results are the serious statement to all whole world community that the small and not recognized state located on the bank of the River Dnestr, shall have the right to count on protection of their own reputation. And this statement cannot be ignored by other countries.

And what do You think of the strategic rate of pridnestrovie directed on rapproachement with Russia and formation of uniform legal space?

Rapproachement of various legal systems, formation of uniform legal space and uniform legal strategy is a complex and labour-intensive process. First of all, it is necessary to develop legal mechanism providing harmonization of political and legal system of pridnestrovie and Russia, and to create reliable basis for the subsequent integration into legal, economic, cultural, information, educational space of the Russian Federation. It is necessary to provide uniform understanding and application of norms of law by all participants. The starting point for the given process should become the joint activity of the legislative, executive and judicial powers directed to harmonization of legislation. Thus, organs of the government should remember, that the major goal of reforming of legislation of our state shall be performance of will of the people expressed on the referendum on September, 17th, 2006

«Pridnestrovie », ą243, 22.12.2006




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