DETERMINATION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of December 27, 2005 No. 491-O

At the request of the St. Petersburg city court about check of constitutionality of separate provisions of the Federal constitutional Law "About Judicial System of the Russian Federation", Law of the Russian Federation "About the status of judges in the Russian Federation" and the Federal Law "About bodies of judicial community in the Russian Federation

Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, judges N. S. Bondar, Yu. M. Danilov, L. M. Zharkova, G. A. Zhilin, S. M. Kazantsev, M. I. Kleandrov, A. L. Kononov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov, Yu. D. Rudkin, N. V. Seleznyov, A.YA. Plums, V. G. Strekozov, O. S. Hokhryakova, B. S. Ebzeev, V. G. Yaroslavtsev,

having heard the conclusion of the judge O. S. Hokhryakova who was carrying out preliminary studying of request of the St. Petersburg city court based on article 41 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation" in plenary meeting established:

1. In production of the St. Petersburg city court there is case on the petition from citizens of Yu. V. Karpenko and I. N. Polovtsev on recognition invalid separate provisions of article 1 of the Law of St. Petersburg of May 27, 2005 "About modification and amendments in the Law of St. Petersburg "About Authorized court of St. Petersburg" on the ground that the changes made by it to the mechanism of forming of Authorized court of St. Petersburg and its competence contradict regulations of the Federal Laws, influence independence and impartiality of this court that can lead to violation of the right of citizens to judicial protection, and also about recognition of the Law in general not corresponding to the federal legislation in the order of acceptance. Besides, Yu. V. Karpenko considers, that fixed by the disputed Law of the requirement to the candidate for judgeship of Authorized court of St. Petersburg (to have faultless reputation and acknowledged high qualification in the field of the right) and the procedure of promotion of candidates and investment of the judge unreasonably limit to their powers its right as citizen of the Russian Federation to apply for holding the post of the judge of Authorized court of Sankt-Petersburg.

The St. Petersburg city court, having come to conclusion that the provisions of Article 12 and part 4 of article 13 of the Federal constitutional Law "About Judicial System of the Russian Federation", Item 1 of Article which are subject to application in case of permission of this case 2, of item 4 of Article 11 and article 14 of the Law of the Russian Federation "About the status of judges in the Russian Federation", and also Item 1 of article 19 of the Federal law "About Bodies of Judicial Community in the Russian Federation" - in that part in what they provide possibility of regulation by the law of the subject of the Russian Federation of the questions concerning the status of judges of the constitutional (authorized) court of the subject of the Russian Federation contradict the differentiation of areas of jurisdiction established by the Constitution of the Russian Federation between the Russian Federation and subjects of the Russian Federation in the field of the organization of judicial authority, and also to the principle of unity of the status of judges, suspended proceeedings and sent to the Constitutional Court of the Russian Federation inquiry for check of constitutionality of the specified legislative provisions.

According to the applicant, article 12 of the Federal constitutional Law "About Judicial System of the Russian Federation" and provision of Item 1 of article 2 of the Law of the Russian Federation "About the status of judges in the Russian Federation" according to which features of legal status of some categories of judges are determined by the Federal Laws and in the cases provided by the Federal Laws, also the laws of subjects of the Russian Federation in their interrelation with article 14 of the Law of the Russian Federation "About the status of judges in the Russian Federation", the judge establishing the bases of the termination of powers, do not correspond to the Constitution of the Russian Federation, its Articles 71 (Item "about"), 118, 120 and 121, as in the sense given to these provisions by law-enforcement practice allow possibility of establishment by the subject of the Russian Federation of the special bases of the termination of the powers of the judge of the constitutional (authorized) court of the subject of the Russian Federation other than the bases, fixed by the Law of the Russian Federation "About the status of judges in the Russian Federation" that can lead to decrease in federal guarantees of the status of the judges extending and on judges of data of courts and by that - to violation by the laws of the subject of the Russian Federation of the principle of unity of the status of judges in the Russian Federation.

The applicant claims also that part 4 of article 13 of the Federal constitutional Law "About Judicial System of the Russian Federation" according to which the procedure for granting of power to magistrate judges, and also chairmen, deputy chairmen, other judges of the constitutional (authorized) courts of subjects of the Russian Federation is established by the Federal Laws and the laws of subjects of the Russian Federation does not correspond to the Constitution of the Russian Federation, its Articles 46, 71 (Item "about"), 118 and 120, in that measure in what allows the subject of the Russian Federation to regulate independently questions of the status of judges of the constitutional (authorized) courts of subjects of the Russian Federation and to determine the law special procedure for selection of candidates for these positions, disregarding, in particular, provisions of the Law of the Russian Federation "About the status of judges in the Russian Federation" about the right of any person meeting the requirements to the candidate for judgeship participate in tender on holding the post of the judge of the constitutional (authorized) court, about obligation of passing by the applicant of qualification examination and participation in selection of qualification board of judges that can affect competence, independence and independence of the specified courts and their judges and to entail violation of the right of citizens to judicial protection.

Illegality of provision of Item 1 of article 19 of the Federal law "About Bodies of Judicial Community in the Russian Federation" fixing that qualification boards of judges of subjects of the Russian Federation in the cases provided by regulatory legal acts of subjects of the Russian Federation consider questions and make motivated decisions on judges of the constitutional (authorized) courts of subjects of the Russian Federation, the applicant sees that it allows possibility of establishment by the law of the subject of the Russian Federation of such procedure and such bases of the termination of powers of the judge of the constitutional (authorized) court of the subject of the Russian Federation which do not provide participation in this process of qualification board of judges of the subject of the Russian Federation, than the unity of the status of judges and judicial system of the Russian Federation and the principle of independence of judges are also broken.

The provision of item 4 of article 11 of the Law of the Russian Federation "About the status of judges in the Russian Federation" according to which the term of office and age limit of continuance in office of the judge for judges of the constitutional (authorized) courts of subjects of the Russian Federation are established by the laws of appropriate subjects of the Russian Federation according to the applicant, contradicts the Constitution of the Russian Federation in that measure in what allows determination by the subject of the Russian Federation at own discretion of term of office and age limit of continuance in office of the judge for judges of the constitutional (authorized) courts of subjects of the Russian Federation, including establishment of such term of office which does not provide to the judge after retirement the right to the material and social security provided by the Law of the Russian Federation "About the status of judges in the Russian Federation" (Item 5 of Article 15 and Article 19), as does not allow to acquire length of service, necessary for receipt of the corresponding payments, in this position; such approach leads to forming of the different status of judges, does not provide their independence.

2. The constitution of the Russian Federation carries to maintaining the Russian Federation as judicial system (Article 71, the Item "about") and establishment of system of federal judicial bodies, procedure for their organization and activities (Article 71, the Item "g"), and establishment of judicial system of the Russian Federation in general which owing to its Article 118 (part 3) is performed only by the Constitution of the Russian Federation and the Federal constitutional Law. At the same time the Constitution of the Russian Federation determines only separate elements of judicial system, fixing bases of the status of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation (Article 125-127); their powers, procedure for education and activities, as well as other federal courts shall be established by the Federal constitutional Law (Article 128, part 3). Treat maintaining the Russian Federation also criminal procedure, civil and procedural and arbitral and procedural legislation (Article 71, the Item "about", Constitutions of the Russian Federation), and the administrative and procedural legislation, personnel of judicial authorities and establishment of the general principles of the organization of system of public authorities are under joint authority of the Russian Federation and its subjects (Article 72, the part Items "to", "l", "n" 1, of the Constitution of the Russian Federation).

Realizing instructions of Articles 71 (Items "g", "o") and 118 (part 3) Constitutions of the Russian Federation, the Federal constitutional Law "About Judicial System of the Russian Federation" along with the federal courts operating in subjects of the Russian Federation provides the constitutional (authorized) courts of subjects of the Russian Federation in quality of vessels of subjects of the Russian Federation (part 4 Articles 4) which enter judicial system of the Russian Federation (part 2 Articles 4), are created and abolished by the laws of subjects of the Russian Federation (part 2 Articles 17), consider the questions carried to their competence, according to the procedure, established by the law of the subject of the Russian Federation, their financing is made by budget funds of appropriate subject of the Russian Federation (parts 2 and 3 of Article 27); the decision of the constitutional (authorized) court of the subject of the Russian Federation made within its powers cannot be reviewed by other court (part 4 Articles 27). These courts can be created by the subject of the Russian Federation for consideration of questions of compliance of the laws of the subject of the Russian Federation, regulatory legal acts of public authorities of the subject of the Russian Federation, local government bodies of the subject of the Russian Federation of the constitution (charter) of the subject of the Russian Federation, and also for interpretation of the constitution (charter) of the subject of the Russian Federation (part of 1 Article 27).

Proceeding from it, and also as article 125 of the Constitution of the Russian Federation check of compliance of the Constitution of the Russian Federation of the laws and other regulations of the subjects of the Russian Federation published on the questions relating to maintaining public authorities of the Russian Federation and joint maintaining public authorities of the Russian Federation and public authorities of subjects of the Russian Federation (the part Item 2), contracts between public authorities of subjects of the Russian Federation (the part Item "in" 2), the dispute resolution about competence between the highest state authorities of subjects of the Russian Federation (the part Item "in" 3), check according to claims to violation of constitutional rights and freedoms of citizens and on requests of courts of constitutionality of the law of the subject of the Russian Federation applied or which is subject to application in specific case (part 4), is assigned to the Constitutional Court of the Russian Federation, thus that the solution of question of need of creation of the constitutional (authorized) court of the subject of the Russian Federation is, as appears from article 17 of the Federal constitutional Law "About Judicial System of the Russian Federation", prerogative of the subject of the Russian Federation, subjects of the Russian Federation independently determine procedure for the organization and activities of data of courts taking into account federal regulation and the legal nature of this judicial institute.

Constitutional court of the Russian Federation, considering the questions concerning legal status of the constitutional (authorized) courts of subjects of the Russian Federation and their judges and confirming competence of subjects of the Russian Federation to create own constitutional (authorized) courts, in the decisions repeatedly specified that procedure for the organization and activities of such courts which are vessels of subjects of the Russian Federation owing to Article 72 (the part Items, "n" 1) of the Constitution of the Russian Federation and on the basis of federal legislative provisions it is independently determined by the subject of the Russian Federation in its constitution (charter) and the laws (determinations of March 12, 1998 N 32-O at the request of management officials of number of subjects of the Russian Federation, of April 9, 2002 N 71-O at the request of the St. Petersburg city court, of February 7, 2003 N 46-O by the claim of the citizen I. N. Polovtsev, of December 4, 2003 N 428-O at the request of the State Meeting - Kurultai of the Republic of Bashkortostan).

3. According to the Constitution of the Russian Federation the government in subjects of the Russian Federation is performed by the public authorities formed by them (Article 11, part 2); the system of public authorities of the republics, edges, areas, federal cities, the autonomous region, autonomous areas is established by subjects of the Russian Federation independently according to the bases of the constitutional system of the Russian Federation and the general principles of the organization of representative and executive bodies of the government established by the Federal Law (Article 77, part 1).

The Federal Law "About the General Principles of the Organization of Legislative (Representative) and Executive Bodies of the Government of Subjects of the Russian Federation" determines that the system of public authorities of the subject of the Russian Federation is constituted: the legislative (representative) public authority of the subject of the Russian Federation, the supreme executive body of the government of the subject of the Russian Federation, other public authorities of the subject of the Russian Federation formed according to the constitution (charter) of the subject of the Russian Federation (Article 2) which also the constitutional (authorized) courts of subjects of the Russian Federation - in case of their organization the subject of the Russian Federation on the basis of the Federal constitutional Law "About Judicial System of the Russian Federation" treat.

The constitutional (authorized) courts of subjects of the Russian Federation, unlike federal courts, are a part of the system, thus, of public authorities of subjects of the Russian Federation. At the same time according to the principle of separation of the authorities at the level of the subject of the Russian Federation the constitutional (authorized) court of the subject of the Russian Federation is independent constitutional (authorized) public authority as it is established by the constitution (charter) of the subject of the Russian Federation, is financed from the budget of the subject of the Russian Federation, and its decisions passed within its powers owing to part 1 of article 6 of the Federal constitutional Law "About Judicial System of the Russian Federation" are obligatory for all bodies of the public power, public associations, officials, other physical persons and legal entities and are subject to strict execution in all territory of the Russian Federation.

Recognition of the fact that the constitutional (authorized) court of the subject of the Russian Federation is the constitutional (authorized) public authority of appropriate subject of the Russian Federation operating independently and independently cannot but be considered in case of legal regulation of the organization and activities of data of courts, including in case of the decision the federal legislator, as well as the legislator of the subject of the Russian Federation of the questions concerning their forming including determination of procedure for granting of power to judges of the constitutional (authorized) courts, term of office and age limit of stay in this position, the bases and procedure for the termination of powers.

4. According to the Federal constitutional Law "About Judicial System of the Russian Federation" all judges in the Russian Federation have the single status and differ only with powers and competence; features of legal status of separate categories of judges are determined by the Federal Laws, and in the cases provided by them - as well the laws of subjects of the Russian Federation (Article 12); the procedure for granting of power to chairmen, deputy chairmen, other judges of the constitutional (authorized) courts of subjects of the Russian Federation is established by the Federal Laws and the laws of subjects of the Russian Federation (part 4 Articles 13).

The Federal Law determining legal status (status) of judges of the constitutional (authorized) courts of subjects of the Russian Federation so far is not accepted. The existing Law of the Russian Federation "About the status of judges in the Russian Federation", adopted on June 26, 1992 i.e. when subjects of the Russian Federation had no competence to create the constitutional (authorized) courts, regulates first of all the status of judges of federal courts that follows also from context of the majority of its Articles.

So, the provision of Item 8 of article 15 of the Law of the Russian Federation "About the status of judges in the Russian Federation", the providing termination of resignation of the judge in case of its re-election on judgeship, concerns as specified the Constitutional Court of the Russian Federation in Determination of February 15, 2005 N 5-O according to the claim of the citizen V. V. Sukhacheva, exclusively repeated appointment of the federal judge staying in resignation to position in federal court, and the sense according to which the repeated appointment attracting the resignation termination also acquisition of powers of the judge of the constitutional (authorized) court of the subject of the Russian Federation would be recognized cannot be given it; other would lead to expansion of the bases which the federal legislator (Item 2 of article 15 of the Law of the Russian Federation "About the status of judges in the Russian Federation") recognizes incompatible with the status of the federal judge in resignation - without direct specifying on it in the called basic Federal Law determining status guarantees of judges; any extensive interpretation of the bases for the termination or suspension of resignation of the federal judge formulated by the law and their distribution on the cases which are directly not called in the law would contradict the purposes and constitutional and legal sense of institute of resignation of the judge.

Therefore, in the absence of the special Federal Law regulating legal status (status) of judges of the constitutional (authorized) courts of subjects of the Russian Federation on them those instructions of the Law of the Russian Federation "On the status of judges in the Russian Federation", including the establishing requirements imposed to candidates for judgeship, the procedure of candidate screen for this position, procedure for investment of judges with powers, the bases and procedure for the termination of powers of the judge who are addressed directly to them and also other instructions expatiate if they, in sense of the relevant standards, are approved with features of the legal nature of the constitutional (authorized) courts as public authorities of the subjects of the Russian Federation exercising the constitutional (authorized) control and also their status and the powers determined by constitutions (charters) and the laws of subjects of the Russian Federation.

It predetermines obligation of subjects of the Russian Federation on settlement under organization of the constitutional (authorized) courts of the status of the specified courts and their judges which can and shall be performed without prejudice to the principles of separation of the authorities and independence of judicial authority, taking into account the legal nature of data of courts as institute of the constitutional justice, their place in system of public authorities of subjects of the Russian Federation. So, the legislator of the subject of the Russian Federation has the right to choose this or that organizational model of the constitutional justice both regarding competence determination, and regarding determination of procedure for granting of power and the terminations of powers of judges of the constitutional (authorized) court, being guided, including, and on regulations of the Federal constitutional Law "About the Constitutional Court of the Russian Federation", however at the same time shall provide necessary guarantees of preserving balance of the authorities, without providing any benefits of one of them, and also having created in relation to the chosen model sufficient guarantees of independence and independence of the constitutional (authorized) court, including material and other guarantees of independence of judges.

5. Thus, the challenged Article provisions 12, parts 4 of article 13 of the Federal constitutional Law "About Judicial System of the Russian Federation", Item 1 of Article 2 and article 14 of the Law of the Russian Federation "About the status of judges in the Russian Federation", the special, additional bases of the termination of powers of the judge of the constitutional (authorized) court of the subject of the Russian Federation, and also procedure for granting of power to judges of this court allowing the subject of the Russian Federation to enter differing from established by the Law of the Russian Federation "About the status of judges in the Russian Federation", as well as the provisions of Item 1 of article 19 of the Federal law "About Bodies of Judicial Community in the Russian Federation" allowing that in case of establishment by the subject of the Russian Federation of features of procedure and the bases of the termination of powers of the judge of the constitutional (authorized) court of the subject of the Russian Federation participation in this process of qualification boards of judges of subjects of the Russian Federation is not provided, cannot be considered as contradicting Articles 71 (Item "about"), 118 (part 3), 120 (part 1) and 121 (part 2) Constitutions of the Russian Federation as the possibility of establishment by subjects of the Russian Federation of such regulation is caused by features of the legal nature of the constitutional (authorized) courts as the public authorities of the subjects of the Russian Federation which are functioning in system of public authorities of subjects Russian Federations on the basis of the principle of separation of the authorities and independently exercising the constitutional (authorized) control also does not exclude obligation of subjects of the Russian Federation to provide when implementing legislative regulation in this sphere respect for the constitutional principles of separation of the authorities, independence and independence of judicial authority.

Cannot be regarded as the violating instructions of Articles 71 (Item "about"), 118 (part 3) and 120 (part 1) Constitutions of the Russian Federation and provision of item 4 of article 11 of the Law of the Russian Federation "About the status of judges in the Russian Federation", allowing establishment by the laws of subjects of the Russian Federation of term of office and age limit of continuance in office of the judge for judges of the constitutional (authorized) courts of the subjects of the Russian Federation differing from the federal courts established for judges as the right of the subject of the Russian Federation to independently resolve these issues which is also caused by features of the legal nature of the constitutional (authorized) courts assumes at the same time and obligation of the subject of the Russian Federation to enter such term of office and age limit of continuance in office of the judge which would guarantee effective implementation of justice, respect for the constitutional principles of independence and irremovability of judges and also to provide proper conditions of material (social) security of judges in case of resignation.

6. According to part two of article 36 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation" the basis to consideration of the case by the Constitutional Court of the Russian Federation is the found uncertainty in question of whether there correspond Constitutions of the Russian Federation the normative provisions challenged in the address.

As in this case such uncertainty is absent, the request of the St. Petersburg city court cannot be taken cognizance by the Constitutional Court of the Russian Federation.

Proceeding from stated and being guided by Item 2 parts one of Article 43 and part one of article 79 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation", the Constitutional Court of the Russian Federation determined;

1. The request of the St. Petersburg city court cannot be taken cognizance by the Constitutional Court of the Russian Federation as in this case there are no bases for pronouncement of the stipulated in Article 71 Federal constitutional Law "About the Constitutional Court of the Russian Federation" of the final decision in the form of the resolution.

2. Determination of the Constitutional Court of the Russian Federation on this request is final and is not subject to appeal.

3. This Determination is subject to publication in "the Messenger of the Constitutional Court of the Russian Federation".

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