CONSTITUTIONAL AND LEGAL COERCION AND CONSTITUTIONALAND LEGAL RESPONSOBILITY

КОНСТИТУЦИОННО-ПРАВОВОЕ ПРИНУЖДЕНИЕ И КОНСТИТУЦИОННО-ПРАВОВАЯ ОТВЕТСТЕННОСТЬ

Тюлебаева Айжан Ахметовна

студент, юридический факультет, Омский государственный университет им. Ф. М. Достоевского,

РФ, г. Омск

Шацкая Жанна Юрьевна

научный руководитель, старший преподаватель, Омский государственный университет им. Ф. М. Достоевского,

РФ, г. Омск

ABSTRACT

The article is devoted to some problems of the constitutional and legal responsibility of communities, as well as political parties and its individual members.

АННОТАЦИЯ

Настоящая статья посвящена исследованию проблемы конституционно-правовой ответственности общностей, а также политических партий и ее отдельных членов.

Keywords: constitutional and legal coercion, constitutional and legal responsibility, community, people, nation, political party.

Ключевые слова: конституционно-правовое принуждение, конституционно-правовая ответственность, общность, народ, нация, политическая партия.

The problems of constitutional and legal responsibility and constitutional and legal coercion have been and are being investigated by representatives from different legal schools, namely: S.A. Avakyan, M.P. Avdeenkova, M.V. Baglai, N.A. Bobrova, V.A. Vinogradov, N.V. Vitruk, V.V. Goshulyak, N.Yu. Davydova, Yu.P. Eremenko, A.A. Kondrashev, O.E. Kutafin, D.A. Lipinsky, V.O. Luchin, Zh.I. Osepyan, F.M. Rudinsky, A.N. Stankin, R.L. Khachaturov and many other scientists.

Constitutional and legal responsibility is an independent type of legal responsibility. The implementation of measures in а form of various kinds of adverse consequences for subjects is not only established by constitutional and legal norms, but is also aimed primarily at protecting constitutional and legal relations. Its constitutional and legislative recognition and establishment as one of the types of legal responsibility will increase the effectiveness of constitutional and legal norms, strengthen their influence on social and political practice, i.e. contribute to the solution of one of the most urgent problems of constitutional law.

It is necessary to give definitions to both concepts:

Constitutional and legal coercion is a system of measures of public and power influence, carried out in a special manner established by the norms of constitutional law, applied to subjects of constitutional and legal relations in order to prevent and resolve constitutional and legal conflicts.

Constitutional and legal responsibility is the obligation of the subject of legal relations (citizen, authority, official) to suffer adverse consequences in a form of restrictions on the personal or property nature of their illegal actions (inaction), established by the Constitution of the Russian Federation [1] and other federal laws.

The mechanism of constitutional and legal regulation relies on state coercion. Coercion is used to suppress violations of constitutional and legal norms, prevent such violations, restore and protect violated rights [2. P. 89].

As for the structure of the constitutional status of the people from the point of view of the law, it includes the totality of the following elements:

1) constitutional legal-subjectivity;

2) the principles of the legal status of the people;

3) sovereign rights and obligations;

4) constitutional responsibility;

5) guarantees of legal status.

Among the principles of the constitutional status of the Russian people, the following ones should be mentioned:

1) the principle of a harmonious combination of personal interests and the interests of the people as a whole;

2) the principle of priority of public interests before the interests of the authorities;

3) the principle of ensuring the legislative consolidation of the will of the people;

4) the principle of non-alienation of the will of the people;

5) the principle of guaranteeing the status of the people;

6) the principle of compliance of the status of the people with the foundations of the constitutional order of the state.

The analysis of modern legislation makes it possible to refer not only to citizens of the Russian Federation, regardless of their place of residence, but also foreign citizens permanently residing on the territory of Russia. This is due to the presence of a number of political rights for these persons, which allows them to actively participate in the political life of the state and influence it. Such rights include the right to elect and be elected to local self-government bodies, the right to participate in a local referendum, the right to organize and participate in meetings, rallies, demonstrations, marches and picketing, the right to appeal.

At the same time, it is necessary to distinguish the category «people» from the categories «population» and «nation», which are understood, respectively, as a set of persons permanently residing in a common territory, including both citizens of the state and foreign citizens, and stateless persons, regardless of their participation in the political life of society; and, accordingly, a social community based on a common origin and ethnicity. The concept of the people is also not identical with the concept of the electoral corps, since it is unfair to exclude from the composition of the Russian people those deprived of voting rights for various reasons, as well as children who are not included in the number of voters due to not reaching the required age [3. P. 98].

In accordance with Art. 39 of the Federal Law «On Political Parties» [4], in case of violation by a political party of the Constitution of the Russian Federation, federal constitutional laws, federal laws, the Ministry of Justice of the Russian Federation issues a warning to the political party indicating the violations committed by it and establishes the term for the elimination of these violations, which is at least two months.

If the above mentioned violations were not eliminated by the political party within the established period, the activity of the political party may be suspended by the decision of the Supreme Court of the Russian Federation for up to six months.

If the violations that served as the basis for the suspension of the activities of a political party are not eliminated within the time allotted by the court, the political party may be liquidated by decision of the Supreme Court of the Russian Federation [5. P. 89].

In addition to this case, according to the Art. 41 of the Federal Law of the Russian Federation «On Political Parties» [6], a political party may be forcibly liquidated by decision of the Supreme Court of the Russian Federation in the following cases:

1) failure to comply with the following requirements:

– Structural divisions of political parties are created and operate only on a territorial basis;

– it is not allowed to create structural subdivisions of political parties in state authorities and local governments, in the Armed Forces of the Russian Federation, in law enforcement and other state bodies, in state and non-state organizations;

– the activity of political parties and their structural subdivisions in state authorities and local self-government bodies (with the exception of legislative (representative) bodies of state power and representative bodies of municipalities), in the Armed Forces is not allowed in the Russian Federation, in law enforcement and other state bodies, in the apparatus of legislative (representative) bodies of state power, in state organizations;

– the interference of political parties in the educational process of educational institutions is prohibited;

2) non-participation of a political party in elections;

3) the absence of regional branches of a political party with at least five hundred members of a political party in more than half of the constituent entities of the Russian Federation;

4) lack of the required number of members of a political party;

5) repeated failure by the political party to submit, within the prescribed period, to the federal authorized body the updated information necessary to make changes to the unified state register of legal entities, with the exception of information about the obtained licenses.

In the Russian Federation, at present, the right to implement sanctions of constitutional and legal liability in relation to political parties belongs to the courts of general jurisdiction. Thus, in accordance with the current Civil Procedure Code of the Russian Federation (clause 4, part 1, article 27) [7], cases on the suspension or liquidation of political parties are considered by the Supreme Court of the Russian Federation as a court of first instance. However, in most democratic countries it is provided that measures of constitutional and legal responsibility to political parties are authorized to apply exclusively to the Constitutional Court [8. P. 100].

Based on the foregoing, we can conclude that constitutional and legal coercion is a complex and multifaceted phenomenon, a target criterion that does not allow reducing measures of constitutional and legal coercion only to constitutional and legal responsibility.

Constitutional and legal responsibility first appeared not in legal acts, but in scientific research, and relatively recently compared to other types of legal responsibility.

Constitutional and legal responsibility is an institution of the branch of constitutional law that performs a protective function aimed at ensuring compliance with constitutional norms.

Thus, constitutional and legal responsibility is the duty of the subject of constitutional and legal relations, fixed by constitutional and legal norms, to be responsible for the inconsistency of his legally significant behavior with that prescribed to him by these norms, provided by the possibility of applying measures of the state or equivalent to it by the authorized instance public impact.

References:

1. The Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) (as amended on March 14, 2020) (adopted by popular vote on December 12, 1993 with amendments approved during the national vote on July 1, 2020) // Rossiyskaya Gazeta. 2020. July 4th.
2. Shakhrai S.M. Constitutional law of the Russian Federation: a textbook for academic undergraduate and graduate students. 4th ed., rev. and additional M.: Statut, 2017. 624 p.
3. Cherepanov V. A. Constitutional law of Russia. Textbook. M.: Norma, Infra-M, 2016. 368 p.
4. Federal Law «On Political Parties» dated July 11, 2001 No. 95-FZ (last edition) // Official Internet portal of legal information http://pravo.gov.ru, 07/11/2001. Art. 39.
5. Constitutional law. A common part. Teaching aid / ed. Bogdanova N. A. M.: Zertsalo, 2019. 372 p.
6. Federal Law «On Political Parties» dated July 11, 2001 No. 95-FZ (last edition) // Official Internet portal of legal information http://pravo.gov.ru, 07/11/2001. Art. 41.
7. Civil Procedure Code of the Russian Federation of November 14, 2002 N 138-FZ (as amended on April 16, 2022) // Official Internet portal of legal information http://pravo.gov.ru, 11/14/2002. Clause 4, Part 1, Art. 27.
8. Davtyan V.R., Kononenko D.V. Constitutional (statutory) law of the subjects of the Russian Federation. Textbook. M.: Yurayt, 2017. 158 p.