Constitutional control can be described as a procedure for checking the acts and actions of state authorities for their compliance with the Constitution. Thus, its implementation is possible only where written law exists and, above all, the basic laws in the form of the Constitution, the provisions of which are dominant in the legal plan in comparison with other regulatory documents.
From the history
The movement to introduce this type of control started in the 19th century in America. As you know, the law in this country is a case law, and back in 1803, a corresponding precedent was created there during the consideration of the case of Marbury v. Madison, where it was established that the court has the right to interpret the Constitution and recognize any legal act as inappropriate to it.
This model of constitutional review, developed in the United States, was subsequently adopted by other states and spread among them.
In Europe, a similar system was developed by G. Kelsen, a professor of law.
The body of constitutional review - the Constitutional Court, as a specialized organization, was first created in Austria in 1820.
The concept
A state of law can be considered one in which there is a rule of law. Moreover, all branches of government should be engaged in their own business, that is, the authority of each of them should be limited. Also in such a state should be present the opportunity to challenge various legal acts on the basis of the Constitution.
The type of control under consideration should be exercised by those individuals who are as independent as possible from state authorities, capable of resolving legal conflicts arising impartially. However, this does not always happen.
Organs
They may be such persons (depending on the nature of the constitutional decision):
- head of state;
- government;
- legislative assembly;
- administrative courts and general jurisdictions.
They can perform the type of control in question specially together with other functions performed by them or during their implementation. In addition, they include: judicial, quasi-judicial. The former include constitutional justice, which is prevalent in many countries, and the latter includes the Constitutional Councils, first formed in France and then other states that have adopted this model.
Depending on what bodies of constitutional review it is carried out, it is divided into centralized and decentralized. The first relates to the competence of special agencies of constitutional justice or the Supreme Court, and the second is carried out by courts of general jurisdiction.
In certain Muslim countries, such bodies are composed of Muslim lawyers, and the legislation is monitored for its compliance with Islamic criteria.
The constitutional control that is exercised by the highest authorities is called political, since they are elective, and during the next election the situation can radically change, which will lead to the dynamics of the current policy. Consequently, this control is tied to momentary political tasks and is unstable.
When exercising the type of control under consideration by state bodies, in addition to judicial ones, it is called general constitutional control. For the purpose of its implementation, subsidiary bodies and institutions or such devices can be created that will specialize in this matter, such as, for example, the parliamentary institute of ombudsmen.
Such control may be preliminary. It is provided in Sweden. There, the advisory control is carried out by the legislative council, and the decisive, political one, is carried out by the Riksdag and the Government. However, in this case, the political coloring of the model under consideration is poorly expressed.
Ship Activities
There are 2 main models of constitutional review:
In addition, some researchers highlight a hybrid model, which is understood as a mixed type of control.
As noted earlier, the second variety arose earlier. Here, the constitutionality of various regulatory laws is established by the courts of general jurisdiction during the consideration of certain cases. This type of control is called a specific follow-up.
In the event that the court recognizes the unconstitutionality of the normative legal act with bringing the case to the Supreme Court, its decision becomes binding on all courts. If he considers the law as such, he will formally continue his action, but no other court will apply it. In most cases, such a legal act by the state parliament after the adoption of such a decision by the Supreme Court is repealed.
In some states (USA, Japan, Argentina, etc.) any courts can exercise judicial constitutional control, while in others (India, Malta), the Supreme Court can go to the Supreme Court only after its consideration by a lower court, which cannot decide on constitutionality.
The European system includes special judicial (quasi-judicial) bodies that exercise this type of control. These include:
- Federal Constitutional Court in Germany;
- Constitutional Tribunal in Poland;
- similar council in France;
- and some others.
This system has now penetrated some Latin American states. Such bodies can be not only federal, but also located within the constituent entities. So, in the German state of Hesse, the type of control under consideration is exercised by the State Court of Justice, and in Saxony - by a similar one called Constitutional. Moreover, the special bodies of constitutional review - the Constitutional Courts with federal and regional statuses - do not form a unified system, which is due to the fact that there is no instance relationship between them, each of them checks certain normative legal acts for compliance with the Constitution, the jurisdiction of which is the court.
The authorities in question use the abstract form of the control being analyzed, although it can be combined with the concrete.
Classification of the process in question
The following types of constitutional review are distinguished:
- mandatory;
- optional;
- preliminary;
- subsequent;
- abstract;
- specific;
- formal;
- material;
- interior;
- external;
- centralized;
- decentralized.
The last two have already been discussed above. Let us dwell on the rest.
An abstract look is inherent in the European system of the process under consideration. The issue of the constitutionality of a regulatory act may be raised by any person recognized as competent by the relevant law, regardless of the particular case.
Concrete control is called incident control, that is, when it is applied, the issue of constitutionality is resolved only regarding the conduct of a specific trial in court. It became widespread in states with decentralized constitutional control.
Preliminary control is carried out in Poland, Romania, Kazakhstan, France. Here, the normative legal act becomes the object of the type of control under consideration even before it comes into effect to prevent various unconstitutional situations. The last may be the draft of this document or one adopted, but not signed.
Subsequent control is carried out at all stages of the application of legal norms to ensure the constitutionality of their application. This type is carried out in Russia, Germany, Hungary, Austria, Spain, Portugal.
Mandatory - such control, in which the regulatory document must pass the verification, laid down in the title, for constitutionality. This type includes organic laws that exist in France. Its purpose is to exclude potential unconstitutional norms from the most important regulatory documents.
An optional view is used if a specific subject who has such a right is applied to establish the constitutionality of a certain regulatory legal act.
Formal control is carried out in order to establish compliance with the necessary review procedures and the adoption of the relevant regulatory act.
The material view is to verify the constitutionality of the content of both the document itself and its individual provisions.
Internal control is carried out by the body that issued the legal document.
Appearance is carried out by other bodies. It is subsequent, while the internal is mainly preliminary.
Constitutional Review Functions
They consist in the commission of certain actions by its organs. These include:
- Verification of compliance of specific legal documents with the Constitution.
- Verification of the constitutionality of international contracts in some states.
- Settlement of disputes between the Federation and its regions or between its various entities. It is applied in Austria, Belgium, the USA, Germany and Switzerland.
- A similar consideration between unitary education and areas of such a state. Characteristic for Italy.
- Settlement of disputes between state authorities on their competencies. Characteristic for Italy and Switzerland.
- The exercise of judicial functions over officials of the country related to the highest. Not typical for all countries.
- The ban on political parties in Germany and Turkey in the event of a suspicion of damage to democratic foundations.
Consequently, each country has its own system of bodies under review, and the functions performed by them are regulated by the legal acts of that state and its Constitution.
The subjects of the control
When describing it, one can speak of presidential, parliamentary, and government control exercised by courts of general jurisdiction and other state bodies. Of all the subjects of constitutional review, those of them are distinguished for whom activities in this area are dominant.
The following symptoms are characteristic of them:
- these are the highest state authorities;
- they can be created and function as special bodies of constitutional review;
- their powers and principles of activity are enshrined in the Constitution;
- they monitor the compliance of laws and by-laws with the requirements of the fundamental law;
- disputes with constitutional significance are resolved precisely by these bodies;
- they control the correlation of the Constitution and legal documents of both the federation itself and its subjects;
- the regulation of the activities of these bodies is carried out by a special legal act, as a rule, with the rank of law;
- the right to interpret normative and legal acts;
- the right to repeal unconstitutional norms or impose restrictions on their application.
Differences between control and supervision
Constitutional control and supervision are distinguished by the fact that the latter has as its aim the detection of unconstitutional acts and requires the body that adopted it to repeal the latter. Supervisory activity may take place at the initiative of a body endowed with such powers or by filing reports of relevant violations. In our state, the function of state supervision is performed by the prosecutor's office.
The concept of constitutional control, however, implies the implementation of constitutional legal proceedings, during which the conformity of various legal acts with the Constitution is assessed, which can be recognized as unconstitutional, which entails their repeal.
Differences between constitutional justice and other types of justice
These include:
- a special system of legislation with which the regulation of constitutional justice is carried out;
- when this control is not exercised by the general courts, it is characteristic to have its own special judicial bodies;
- they carry out judicial proceedings, which have cardinal differences from other types of legal proceedings;
- the nature of documents of judicial constitutional review is sharply different in its originality;
- the bodies exercising the control in question are characterized by the presence of constitutional jurisdiction.
The implementation of the control in our country
In Russia, such activities are carried out in order to verify legal acts in accordance with the Constitution of the state. In this case, documents that contradict the basic law must be identified. It also provides for the application of measures to eliminate them. The Constitution itself establishes the following forms of protection:
- President of the Russian Federation;
- direct and indirect constitutional review;
- control in question;
- revision and amendment of this basic law in a special manner;
- interpretation of constitutional norms.
The judicial body of constitutional review in the Russian Federation is the Constitutional Court (CC). He cannot exercise a preliminary form of control. He can carry it out in relation to already adopted and current regulatory legal acts. Moreover, our state uses an abstract form of control.
In addition to the federal Constitutional Court in Russia, the same name or charter courts of the subjects operate. Those powers that do not apply to them are exercised by the arbitration courts and those of general jurisdiction.
In our country, the federal Constitutional Court was established in 1990, and formed at the end of 1991. It is not supervised by any authorities. When conducting legal proceedings, it is limited only by the requirements of the Constitution and the Federal Law on the Constitutional Court .... Decisions made by him are binding on any entities.
The principles of its activities:
- publicity;
- independence;
- competitiveness;
- equal rights of the parties;
- collegiality.
A judge of the Constitutional Court must be at least 40 years old, he cannot occupy other positions in state or public organizations, engage in other activities that would be subject to payment, except for creative. He should not give anyone his protection, be involved in politics. In addition, he is prohibited from speaking out on the issue under consideration until a decision by the COP is adopted.
Not all citizens can apply to this body. Such a privilege with a request for the constitutionality of legal documents is granted to the President, the Parliament of the Russian Federation or one fifth of any of its chambers, the Supreme Court, the Government of the Russian Federation, and the executive and legislative authorities of the regions. On its own initiative, the Constitutional Court cannot consider cases. His powers include resolving questions on the constitutionality of legal documents issued by the President, the Government of the Russian Federation and both houses of parliament and only upon request from the above-mentioned persons. If the documents of these persons do not establish the rule of law, then such cases the court cannot consider. Also, his powers include resolving disputes on the distribution of competence both horizontally and vertically.
At the same time, an even smaller circle of persons and bodies may request a interpretation of the Constitution: the President, the Government, parliament, regional Duma and other legislative bodies of the regions. Unlike other requests, criteria for admissibility of appeals on the interpretation of the Constitution have not been established.
Preliminary constitutional review in the Russian Federation is carried out by the Federal Assembly. Within the limits of their competences, other top persons and state bodies of the state are involved in the phenomenon under consideration. First of all, this is the president, the Government, as well as the executive and legislative bodies of the regions of the Russian Federation, general courts and the prosecutor's office.
Finally
Constitutional control is one of the main democratic institutions of the state, through which compliance with the requirements of the Constitution is carried out in various regulatory documents adopted by state authorities at various levels. There are several models for its implementation, the most common among which are European and American. In our country, the Constitutional Court is vested with the right of judicial form of this control. Some regions have their own courts of the same name. Also, in the control under review, other authorities and state officials are involved within their powers.