CONSTITUTIONAL FUNDAMENTALS AND EFFECTIVENESS
OF JUSTICE IN CIVIL CASES
The Constitution of RF is the most important authority of law as a whole and, in particular, of its procedural branches. The rules stipulated in the Constitution determine the public purpose, essence, and general regularities of organization and functioning of the courts as public (judicial) authorities. The judicial procedural and organizational rules stipulated in other laws concretize and develop the constitutional rules and cannot be contrary to them.
Justice in the Russian Federation is administered by the court - a body conferred with the judicial power - through constitutional, civil, administrative, and criminal proceedings (parts 1 and 2, Art. 118 of the Constitution of RF). But irrespective of the procedural forms of justice administration its constitutional fundamentals manifest themselves in the objectives and principles stipulated in the Fundamental Law of the country. At the same time, the purpose-orientation of justice administration plays a decisive role.
At the same time, the principles, being the fundamentals of a judicial process, play a subordinate role with respect to the objectives of justice, which should be interpreted as socially necessary and desirable output of procedural activities of the court and other participants of a case trial and adjudication. In essence, the principles are intended exactly to express the procedural objectives and to determine methods of their implementation.
The constitutional fundamentals of justice are directly related to the problem of the effectiveness of justice because the main and objectively existent interests and needs of the society in an equitable and optimal procedure of cases trial and adjudication are expressed in the constitutional objectives of court proceedings. The degree of effectiveness of the judicial activities in justice administration depends on the extent of realization of these objectives.
The priority constitutional purpose of justice in this country is stipulated in articles 2, 17, 18 of the Constitution of RF and consists in the protection of rights and freedoms of a man and a citizen. This purpose of justice is extended onto legal entities, as well, since their status always implies a group of individuals. Besides, all forms of property are equally protected in the Russian Federation, and the interested persons, be they natural or legal persons, have equal procedural possibilities for protection of their legal rights and lawful interests (Part 2, Art. 8 and Part 3, Art. 123 of the Constitution of RF).
Article 3 of the Federal Constitutional Law On the Judicial System of the Russian Federation states that the national judicial system is a single whole, but actually this is not so obvious because of the existence of autonomous, organizationally and procedurally independent systems of common and arbitration courts, as well as of the Constitutional Court of RF and constitutional (statutory) courts of the subjects of RF. However, the common duty of the courts to protect rights and freedoms of a man and a citizen, as the main constitutional purpose of justice, unites all branches of the judicial power in the system of public institutions by virtue of their common objective. The necessity to achieve this objective effectively provides a constitutional ground for concerted actions of all kinds of courts.
Sometimes complaints may be heard that the Constitutional Court of RF adjudicating on unconstitutionality of laws and other normative acts, intrudes on the jurisdiction of common and arbitration courts, and vice versa, other courts intrude upon the jurisdiction of the Constitutional Court of RF. However, the unity of the above-mentioned main constitutional purpose of justice creates conditions for certain overlapping of jurisdictions of courts constituting the judicial system of the Russian Federation, and this allows to effect the judicial protection of rights more efficiently. The overlapping of jurisdictions manifests itself in different aspects.
Thus, the Constitutional Court of RF, at the request of certain subjects and following the so called rules abstract control, adjudicates on constitutionality of laws and other normative acts adopted both at the federal and regional levels. But this does not exclude the common courts' competence to verify, following the same rules abstract control, the consistency of normative acts of a legal effect lower than a federal law with regulations of a higher legal effect at the request of individuals and organizations, as well as of a public prosecutor. The results in both the cases may be the same - disqualification of the normative act in question.
Overlapping of jurisdictions reveals itself also in the precedent significance of resolutions of the Constitutional Court of RF for law enforcement practice of other courts. Pursuant to Art. 79 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation the legal position of the Constitutional Court fixed in its judgements is obligatory for courts; acts recognized as unconstitutional become invalid, judgments based thereon are not enforceable and must be revised in the cases provided for by a federal law. Recognition of a normative act as inconsistent with the Constitution of RF is the ground for abrogation of provisions of other normative acts based thereon, these provisions cannot be enforced by courts (Part 2, Art. 87 of the above Law). Pursuant to Part 2, Art. 100 of the above Law any specific case must be reviewed if the Constitutional Court of RF recognizes the law enforced therein as inconsistent with the Constitution of RF.
Overlapping of jurisdictions is also connected with courts' requests to verify the constitutionality of a law enforced or enforceable in a specific case, as well as with a court's entitlement and obligations to enforce directly the Constitution of RF that has the highest legal force and produces a direct effect (Part 1, Art. 15 of the Constitution of RF). Pursuant to Part 3, Art.5 of the Federal Constitutional Law On the Judicial System of the Russian Federation and explanations contained in para 2 of the Ruling of the Plenary Session of the Supreme Court of RF dated 31 October 1995, No. 8 On Certain Issues of Enforcement of the Constitution of the Russian Federation by Courts in Administration of Justice, should a court be convinced in inconsistency of a law with the Constitution of RF, it ought to enforce, on its own, the constitutional provisions. The Supreme Court of RF clarified in para 3 of the above Ruling that in case of uncertainty respecting consistency of the enforced or enforceable law in a specific case with the Constitution of RF, the court, guided by the provisions of Part 4, Art. 125 of the Constitution of RF, should apply to the Constitutional Court of RF for verification of the constitutionality of the law concerned.
In this connection, the wording of Art. 101 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation establishing a court's duty to apply for verification of the constitutionality of a law only if it concludes that the law is inconsistent with the Constitution of RF, cannot be recognized as successful. Having come to this conclusion, the court has no obstacles in non-enforcement of the law, moreover, it is obliged to act exactly so, adjudicating the case in compliance with the Constitution of RF. It is quite another matter if the court has certain doubts and it is uncertain only as to the consistency of the law with the constitutional provisions: in this case a respective application to the Constitutional court of RF is justifiable if the dispute cannot be settled without enforcement of the disputable law.
Since only the Constitutional Court of RF may resolve on disqualification of a federal law, the aim of the above normative provisions is quite obvious and consists in creation of conditions for prompt eradication of an unconstitutional law from the legislation system. However, this aim conflicts with the main purpose of justice, which is protection of rights and freedoms. To achieve the purpose, a case should be adjudicated not only rightly but also timely, whereas the stay of proceedings in connection with the inquiry to the Constitutional Court of RF when the court could have enforced the constitutional provisions itself, postpones exercise of the right of relief considerably. Sometimes a stay of justice administration is equivalent to the denial of justice, as it often happens in cases of protection of the suffrage, where existence of contestable relations is very transient.
Besides, the court finds itself in a difficult situation in respect of the equitable parties to the adversary proceedings when charged with the duty to conclude on the unconstitutionality of the law regulating controversial relations before a case adjudication on the merits, since the parties may doubt the court's impartiality if the proceedings are continued after the grounds for its stay have become irrelevant. It should be noted that even the Constitutional Court of RF in its ruling in the case of interpretation of certain provisions of Articles 125, 126, 127 of the Constitution of RF admitted the authority of other courts to enforce the constitutional provisions directly. The Constitutional Court only pointed out that after adjudication of such a case the court should forward a request to the Constitutional Court of RF for an official confirmation of the unconstitutionality of the law which it has refused to enforce. It is quite in line with the purpose of justice, since its optional objectives are to enhance lawfulness and law and order, to prevent offenses, to form respect to the law and court, which undoubtedly requires an official disqualification of the law that is ruled unenforceable because of its inconsistency with the Constitution of RF.
In view of the foregoing arguments, Article 101 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation should have stipulated that a court submits an inquiry to the Constitutional Court of RF about the constitutionality of an enforced or enforceable in a specific case law, if there is an uncertainty about consistency of the law with the Constitution of RF, and also in case of refusal to enforce the law because it is contrary to the Constitution of RF.
Pursuant to the provisions of Art. 118 of the Constitution of RF and Art. 1 of the Federal Constitutional Law On the Judicial System of the Russian Federation, justice in civil cases administered by both common and arbitration courts should be attributed to the sphere of the civil procedure. However, the trial procedure in arbitration courts is established in the rules of actually an independent branch of law, and the arbitration procedural form has its essentially specific character. It becomes apparent in the wording of the purpose of proceedings.
Thus, pursuant to Art. 2 of the Code of Arbitration Practice the purpose of a trial and adjudication procedure in an arbitration court is to protect the rights and lawful interests of organizations and individuals in the sphere of entrepreneurial and other economic activities and to further enhancement of lawfulness and prevention of offenses in this sphere. In this event the legislator calls the basic constitutional objective of justice (protection of rights and lawful interests) a principal and direct purpose of an arbitration proceeding, and concurrent objectives of justice (enhancement of lawfulness and prevention of offenses) - its supplementary (optional) purposes.
The legislator words the purpose of the procedural activities in justice administration by common courts in civil cases differently. Pursuant to Art. 2 of the Code of Civil Practice of RSFSR (the CCP of RSFSR) the purpose of civil proceedings is to try and adjudicate civil cases rightly and timely with the object to protect violated or challenged rights, freedoms, and lawful interests of natural and legal persons, and legally protected interests of the Russian Federation, its subjects, public authorities of all levels and local authorities, rights, freedoms, and legally protected interests of other persons - subjects of civil, labor, administrative, or other legal relations; the civil procedure must further enhancement of lawfulness and law and order, prevention of offenses, formation of respect towards the law and court.
Therefore, rightful and timely case trial and adjudication are immediate objectives of common courts, which serve as the means for attainment of objectives of proceedings stated further in the same rule.
It is obvious that proceedings in a civil case are instituted and conducted to attain the objective consisting in protection of rights and interests of individuals and organizations. Realization of this constitutional objective of justice objectively facilitates attainment of concurrent objectives of proceedings, too: enhancement of lawfulness and law and order, prevention of offenses, formation of respect towards the law and court. But these are final objectives rather than purposes of justice, which may be attained if the purposes of rightful and timely case trial and adjudication are achieved. Such sequence of objectives implementation exists in any civil case irrespective of the parties to a dispute and its nature, which serve as criteria for differentiation of jurisdiction between arbitration and common courts.
Hence, the wording of objectives in the CCP of RSFSR adequately expresses the constitutional purpose of justice, orientation of activities of the court and other participants in a process, and indicates the means for attainment of socially significant results of proceedings. The content of Art. 2 of the CCP of RSFSR corresponds, to a greater extent, to the rules of the international law which pursuant to Part 4, Art. 15 of the Constitution of RF are components of the national legal system. In particular, pursuant to Art. 6 of the Convention For the Protection of Human Rights and Fundamental Freedoms ratified by RF every individual has the right to fair and public case trial within reasonable time (italicized by the author) conducted by an impartial and independent court set up by law.
The important rules determining constitutional fundamentals of civil proceedings comprise Art. 46 of the Constitution of RF guaranteeing every individual the right of relief. This right is, first of all, of a procedural nature since without an interested person's recourse to a court and subsequent case adjudication by the court in the prescribed manner, without verification, whenever necessary, of the correctness of a judgment rendered by a higher court and its subsequent execution, it is impossible to ensure protection of a violated or challenged right.
The procedural right of relief does not depend on actual possession of a legal substantive right by an interested person and the fact of its infringement by a person indicated as a respondent, since these circumstances may be established by a court only as a result of a case trial and adjudication on the merits. If during adversary proceedings the claimant cannot prove the above circumstances, the action is adjudicated to be dismissed and thus the respondent exercises the right to judicial protection against ungrounded claims.
Therefore, the procedural rules do not consider the absence of the claimant's material or another interest in the contention to be the ground for rejection of a statement of claim (Art. 129 of the CCP of RSFSR, Articles 107 and 108 of the Code of Administrative Practice of RF). The procedural aspect of the right of relief is the most expressly worded in Art. 2391 of the CCP of RSFSR. Pursuant to this article an individual is entitled to file a complaint before a court if he considers (italicized by the author) that his rights and freedoms have been violated by governmental authorities, a public organization, or an official.
The constitutional right of relief prohibits the legislator from restricting the possibility to protect the rights, freedoms, and lawful interests of individuals and organizations in an administrative or any other out-of-court way. Any normative acts of the kind must not be enforced by courts as contrary to the fundamental law of the country. Such conclusion follows directly from the provisions of Articles 15 and 46 of the Constitution of RF, Part 3, Art. 5 of the Federal Constitutional Law On the Judicial System in the Russian Federation, Art. 1 of the CCP of RSFSR, and Art. 3 of the CAP of RF.
The constitutional right of relief has a substantive law aspect. Only a right violated or challenged by a respondent is subject to protection, and delivery of a lawful and grounded judgment requires correct determination of the nature of a controversial relationship and the essence of the legal substantive right of the parties. In this connection, when provisions of the substantive law come into collision with the Constitution of RF, as is often the case in the judicial practice, the problem of direct enforcement of the constitutional rules in legal qualification of a controversial relationship becomes actual.
The constitutional right of relief also presupposes protection of rights and freedoms from erroneous judgments. At the same time, one of the effective guarantees of such protection is the possibility to review a case by a higher court that should be ensured by the State in one or another way (with due regards for peculiarities of every kind of proceedings). A similar legal position has repeatedly been expressed in the rulings and determinations of the Constitutional Court of RF, pursuant whereto the legislator is prohibited from restricting the possibility to appeal to a court of appeal against judgments delivered by common and arbitration courts of original jurisdiction, in particular, on the ground of peculiarities of controversial legal relationship (for example, related to exercise of a suffrage).
The constitutional right of relief is directly connected with the provision of Part 1, Art. 47 of the Constitution of RF guaranteeing everybody the right to have his case tried by that court and that judge under whose jurisdiction it is attributed by law. In this connection, principally significant is the ruling dated 16 March, 1998, passed by the Constitutional Court of RF in the case on constitutionality of Art. 44 of the Code of Penal Practice of RSFSR and Art. 123 of the CCP of RSFSR, instituted as a result of a number of citizens' complaints. The above articles stipulate that in certain cases the president of a respective higher court or his deputy may transfer a case from one court to another, provided they are have similar jurisdictions, with the aim to try a case more quickly and impartially and to ensure a disciplinary effect of the proceedings. The Constitutional Court recognized the rules as contrary to the Constitution of RF in the part permitting transfer of a case from one court to another without respective procedural execution and in absence of precise grounds for such transfer from the law.
The Federal Law dated 7 August 2000 removed this uncertainty of Art. 123 of the CCP of RSFSR with account of the legal position of the Constitutional Court of RF. But particular significance of this ruling for the judicial practice consists in that the Constitutional Court of RF placed among the most important constitutional values the right of everyone to have his case tried by the court and the judge under whose jurisdictions it is attributed by law. An arbitrary change of the jurisdiction of a case violates not only Part 1, Art. 47 but also Art. 46 of the Constitution of RF which presupposes, in particular, everyone's right of relief exercised through a case trial by an independent and impartial court set up by law.
According to the logic of the ruling of the Constitutional Court any deviation from this rule cannot be regarded but as an essential violation of the procedural law, which has resulted or could result in a case mistrial. Pursuant to Part 1, Art. 308, para 2, Part 1, Art. 330 of the CCP of RSFSR, Part. 2, Art.158, Part 2, Art. 176, Part 1, Art. 188 of the CAP of RF any infringement of the constitutional right of a civil case trial by the court to whose jurisdiction it is referred by law is an unconditional ground for reversal of a judgment by a higher instance of a common or arbitration court.
When revealing constitutional fundamentals of justice in civil cases, attention is usually paid to such principles concerning judicial organization and procedure as: administration of justice only by court, administration of justice on principles of equality of citizens before the law and court, publicity, the national language of proceedings, independence of judges and their subordination only to the Constitution of RF and a federal law, the adversarial character and procedural equality of parties, lawfulness. The above mentioned constitutional principles, being fundamental provisions of procedural branches of law establishing the procedure of trial and adjudication of civil cases by common and arbitration courts, determine what the judicial procedure should be so as to attain optimal objectives of justice administration.
The principles of the civil and arbitration procedural laws are elements of a certain system and within the bounds of its branch are closely interconnected. This interconnection is especially vivid in the principle of lawfulness, since its realization is impossible without observance of any other principle.
When revealing the substance of the principle of lawfulness, it is necessary to proceed from the difference between the law as an objective regulator of public relations and a legislative act as a form of an expression of law. Legislative acts do not always convey the law adequately, and in this connection it is necessary to distinguish between legal and illegal acts which should neither be passed by the legislator nor enforced by courts. Such premise stems directly from Articles 1, 2, 15, 17, 18 of the Constitution of RF.
In this connection, the lawfulness in justice should not be regarded as conformity of the procedural activities of courts and other subjects of proceedings with requirements of a legislative act only, without correlation thereof with the requirements of law, whereof the most important is the Constitution of RF. The consequence of identification of the law and a legislative act is the use in theory and practice of such terms as constitutional lawfulness and legal lawfulness along with the term lawfulness, whereas there should not be lawfulness of different levels in principle, and all these terms may convey only the same essence. Enforcement by court in a case adjudication of a legislative act colliding with the Constitution of RF or with another normative act of greater legal effect, as well as with the essence, substance, and principles of the law, always signifies unlawfulness of a judgment.
The generalizing nature of the principle of lawfulness with respect to other principles of the procedural law reveals itself in its closer connection with the objectives of the judicial procedure. In essence, the lawfulness itself is one of the general objectives of civil proceedings, since strict observance of the rules of the substantive and procedural laws in the activities of a court and other subjects means a correct trial and adjudication of a case (Art. 2 of the CCP of RSFSR).
The conception of lawfulness is closely connected with another general objective of civil proceedings worded as the requirement of timely trial and adjudication of a case. The time limits for cases trial are fixed in the procedural law, hence, the breach of time limits means infringement of legal prescriptions. Official circumlocution in civil cases not only decreases effectiveness of the judicial protection, but sometimes makes it senseless.
A case trial in line with the requirements of law also means a fair trial. Nevertheless, fairness is very often attributed to independent constitutional principles, which is hardly agreeable. The attractiveness of the term for description of justice is evident, but fairness should be regarded only as an attribute of the principle of lawfulness.
Fairness is not only a legal but also a moral, a political category, etc., the ideas of which may considerably differ, which is explicitly manifested in proceedings by parties with opposing interests. People cannot be equal in their social capabilities and possibilities, and legal equality applied to actually unequal subjects appears sometimes unfair, but it is the legal fairness that matters most for justice.
As regards moral ideals, commonly accepted moral requirements, they are usually reflected in the rules of a law, but just from the viewpoint of legal universality and equal enforcement of common obligatory rules onto all subjects of legal relations having certain characteristics. That does not exclude the possibility to stipulate in normative acts the privileges for certain categories of persons, in particular, with account of their financial status as, for example, it is provided for in Art. 80 of the CCP regulating exemption from legal costs payment.
Fairness in justice is ensured by correct finding of facts, correct legal evaluation thereof, correct construction of an enforceable rule always operating in a system of other rules. It is possible if the rule on a case trial procedure is followed, in particular, with respect to the procedural time limits and democratic principles of the proceedings conducted, first of all, by an impartial and independent court on the basis of equality of parties and adversary nature of their relations.
Lawfulness implies reasonableness and expediency. Being an exclusive and highly efficient social regulator, the law, by definition, must be reasonable and expedient and aimed at the most optimal organization of the society's life. The ideas of reasonableness and expediency, as well as of fairness, are subjective criteria, whereas the law is an objective one.
The legislation sometimes provides for direct consideration of requirements of fairness, reasonableness, and expediency. Thus, pursuant to Art. 91 of the CCP a court adjudges a defeated party obliged to pay for a representative's (counsel's) assistance rendered to a prevailing party within reasonable amounts and with account of specific circumstances of the case. Pursuant to Art. 128 of the CCP a judge is authorized to single out one or several joint claims into a separate proceedings if he considers separate consideration of claims more expedient.
The legislator obliges to use the criteria of reasonableness and fairness to fill in the gaps in the legal regulation (para 2, Art. 6 of the Civil Code), to estimate a compensation for the moral harm (para 2, Art. 1101 of the Civil Code), etc. The rules of a law without a direct reference to the requirements of fairness and expediency very often allow a court to resolve certain matters following the procedure of individual by-law regulation. For example, pursuant to Part 1, Art. 333 of the Civil Code, whenever the payable forfeit quite obviously does not correspond to the prejudice incurred as a result of the breach of obligations, the court is authorized to decrease its amount. It is evident that similar matters cannot be resolved without using the above mentioned criteria.
In all the foregoing cases the judges do not take into account the requirements of fairness, reasonableness, and expediency at random, but proceed from the specific circumstances of a case, as well as from the principles, meaning, and substance of the law. At the same time, their subjective conceptions of the law should be adequate to the law itself.
  Federal Law dated 30 March 1998 - Collected Laws of RF, 1998, No. 14, Art. 1514.
  See, for example, the ruling dated 28 May 1999 passed in the case of verification of constitutionality of Part 2, Art. 266 and para 3, Part 1, Art. 267 of the Code of RSFSR On Administrative Offenses, instituted in connection with complaints of a group of citizens. Vestnik Konstitutsionnogo Suda RF (Bulletin of the Constitutional Court of RF), 1999, No. 5.
  Ditto, 1998, No. 3.