The decision of the Constitutional Court is independent source of the law

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Abstract work

THE DECISION OF THE CONSTITUTIONAL COURT IS INDEPENDENT SOURCE OF THE LAW

Till present the domestic legal science has paid not enough attention to the concept "the source of the law". Professor S.F. Kechekyan has specified, that this concept "belongs to the most unclear in the theory of the law. There does not only exist conventional definition of the given concept, but even the very sense of it is disputable. In fact "the source of the law" is an image which should more help understanding, than give the concept designation of its expression" [1]. The only thing in which experts converged in opinion; defining the concept "the source of the law" is that it is necessary to understand not the reasons generating legal rules, but the ways of formation of legal norms, forms of statement of the law.

The English jurist K. Ellen defines the source of the law as activity, by means of which norms of behavior get the character of the law, becoming objectively certain, constants and first of all obligatory [2].

In conditions of the Soviet legal system the unique source of the law has been admitted the statutory act. Therefore the concept "the system of sources of the law» usually replaces the concept the system of the legislation". Ethatetic theory of the law in interrelation with concepts of "state" and "law" gave the priority to "the state". The law was considered as the way of formation of the state will.

Certainly, the statutory act is the dominating source of the law. In the opinion of O.A. Puchkov it has the following conclusive advantages:

- The statutory act can be issued operatively, can be changed in any part, that allows reacting rather quickly to social processes;

- Statutory acts, as a rule, are definitely systematized, that allows carrying out easily search of the necessary document for application or realization;

- Statutory acts allow fixing precisely the contents of legal norms that helps to carry out the uniform policy, not to suppose any interpretation and application of norms;

- Statutory acts are supported and protected by the state. In case of infringement of regulations of statutory acts infringers are pursued and punished on the basis of the law [3].

Fixing by the Constitution of the Russian Federation of 1993, alongside with the laws and other statutory legal acts, as sources of the law of the international contracts, and of the conventional principles and norms of international law has given the reason for reconsideration of practically all general-theoretical concepts, including the system of sources of the law.

The legal science faced the problem to explain theoretically the importance of inclusion in system of sources of the modern Russian law such kinds of acts as acts of the supreme judicial authority and to create the complete system of sources of the modern Russian right, including alongside with all federal sources of the law the sources created at other levels - regional, municipal, corporate (local).

In the legal science the concept of "the source of the law" is perceived differently. In the continental law including the law of Russia, the right of the legislator is dominating, in Anglo-Saxon law the first place is given to the judicial practice - "the right of judges ". It is the classical theory. However the law does not develop in the direction of pure division in two parts. There exists gradual rapprochement of legal systems, their convergence. Here the great role belongs to the decisions of the European Court on human rights.

In the Russian Federation there have been created bodies of the constitutional justice, whose decisions are obligatory and have high validity. The Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation give explanations on questions of judiciary practice, offer the uniform decision of legal problems. These explanations are especially important whereas the Civil, Family, Civil Remedial, Arbitration Remedial Codes of the Russian Federation suppose analogy of the law and analogy of the right.

However our legislation does not allow recognizing explanations of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation on questions of judiciary practice as sources of the law. In spite of the fact that explanations of these courts render significant influence on the subsequent judgments and somehow get case value, they do not contain legal norms. Decisions of courts of the common and arbitration jurisdiction are law applying acts. By virtue of Article 118 of the Constitution of the Russian Federation Courts of general and arbitration jurisdiction, including the Supreme Court and the Supreme Arbitration court, at consideration of the concrete case make decision according to the law. If the court at consideration of the case comes to the conclusion about discrepancy of the law of the Constitution of the Russian Federation applied, it is obliged to suspend applied to proceeding on the case and to apply to the Constitutional Court of the Russian Federation.

We assume, that if explanations of the Supreme Court and the Supreme Arbitration Court were sources of the law Article 125 of the Constitution of the Russian Federation would contain the norm giving the right to the Constitutional Court of the Russian Federation to verify them on conformity to the Constitution of the Russian Federation. source law constitution court

Decisions of bodies of the constitutional justice have validity. According to Article 79 of the Federal constitutional law "About the Constitutional Court of the Russian Federation" from June 21, 1994 the decision of the Constitutional Court of the Russian Federation shall be final, shall not be subjected to appeal and shall come into force in no event after its declaration. It shall act directly and shall not demand confirmation by other bodies and officials. The validity of the decision of the Constitutional Court about admission of the act unconstitutional cannot be overcome by repeated adoption of the same act.

Acts or their separate regulations, admitted unconstitutional, lose force; not valid international contracts of the Russian Federation admitted not corresponding to the Constitution of the Russian Federation, are not subjected to introduction in action and to application. Decisions of courts and other bodies, based on the acts admitted unconstitutional, are not subjected to execution and should be reconsidered in cases established by the federal law [4].

Similar norms are contained in all laws on the constitutional (charter) courts of the subjects of the Russian Federation.

Decisions of bodies of the constitutional justice possess a number of properties, characteristic for statutory legal acts. They are:

1. Obligatory application of decisions of the constitutional (charter) courts on the entire territory of the subject of the Federation (it differs from obligatory execution of the decision of other courts having the general character);

2. Finality of the decision of the constitutional (charter) court being final and not subjected to appeal;

3. Spontaneity of action of the decision of the constitutional (charter) court requiring no statement by any statutory legal act;

4. Insuperability of the decision of the constitutional (charter) court (validity of the decision cannot be overcome by repeated adoption of the same act).

However in the legal science there exists no uniform point of view on the legal nature of decisions of bodies of the constitutional justice. Thus, for example, academician V.S. Nersesyan considers that the decision of the Constitutional Court of the Russian Federation on admission of the law not corresponding to the Constitution is the law applying act. Action of the regulation admitted unconstitutional is cancelled not by the decision of the Constitutional Court, but by the legislator, in this case by virtue of the direct action of the Constitution which has established the given rule. The decision of the judicial body on discrepancy of the Constitution to the considered statutory act is the ground for cancellation of the given act competent law creative body, instead of cancellation [5].

The opposite point of view is expressed by professor S.A. Avakyan. He considers, "that the performance by any subject of the law of problems of law application does not at all exclude its law creative activity. On the contrary, very many of them, applying the norms created by other subjects of the law, and at the same time for their realization create new legal norms, in the form of the statutory acts. In particular, the government, realizing the general function of the executive power - the organization of application of laws, uses the right of law creativity. In relation to the corresponding law it can be named law application though the known reserve of conceptual staff in the given case is obvious" [6].

Professor V.A. Kryazhkov tries his best to reconcile authors of different positions about the legal nature of decisions of the constitutional courts. In his opinion, "decisions of the Constitutional Court occupy the specific place in the system of legal acts. They can be attributed neither to law applying, nor to establishing norms acts; they combine the given qualities" [7].

In our opinion, the constitutional courts realize the law creative function, but with the certain features. They are:

1) Law creativity is not the overall objective of the court, bur "an additional product of functioning of justice";

2) It is realized according to the constitution and should not contradict it;

3) It is connected more often with interpretation of the law and completion of blanks in the law;

4) There are limits of judicial law creativity;

5) Legal regulations are developed by the court on the basis of legal principles and legal norms;

6) They cannot cancel or change the law.

At present according to the science of the constitutional law there exists the opinion that the decision of the constitutional court is the source of the law. But what kind of the source is it?

In the West plurality of sources of the law has been traditionally admitted. Thus, Professor Jean - Lui Berzhel considers that "though the importance and authority of these sources varies, that depends both on the concrete legal system, and on the epoch and the country, it is possible to allocate the law, custom, judiciary practice and interpretation of laws (or doctrines). It has been admitted to allocate "sources in writing" for example, "sources unwritten", for example, a custom, or "direct sources" for example interpretation of the law and judiciary practice" [8].

According to Professor V.D. Zorkin "In the Russian jurisprudence there exists the opinion that decisions of the Constitutional Court are decisions of case character. Actually, some essential properties of decisions of the Constitutional Court containing legal positions make them in common with precedents. Thus, its decisions are distributed not only to the concrete case, but to all similar cases and have the official character making their realization of the obligatory on the entire territory of the country. As it is possible to speak about independent law creative functions of the Constitutional Court it is necessary to admit, that its decisions get case character and become sources of the law" [9].

Certainly separate properties of judicial precedent are characteristic for decisions of the constitutional court. But in our opinion there are some essential distinctions between them.

The judicial precedent is "the decision of court on the concrete case serving a sample for adoption in the future of decisions on other cases arose in connection with similar actual circumstances" [10]. The judgment, becoming the precedent, obligatory, as a rule, for the courts considering the similar cases, i.e. possessing identical jurisdiction. And small dissimilarity in the plot of the case can result in making of another decision. At the federal level in the Russian Federation there exists Constitutional Court. And it is not going to make identical decisions. The expressed position of the Constitutional Court is the ground for refusal in admission for consideration of the similar cases. Besides according to Article 6 of the Federal constitutional law "About the Constitutional Court of the Russian Federation" decisions of the Constitutional Court of the Russian Federation are obligatory on the entire territory of the Russian Federation for all representative, executive and judicial bodies of the government, of bodies of local self-management, enterprises, establishments, organizations, officials, citizens and their associations [11].

Such distinction in the legal nature and invalidity of decisions of the Constitutional Court of the Russian Federation and judicial precedent is explained by the special status of the Constitutional Court. Professor V.E. Chirkin suggests to not include the Court in the judicial authority, but to relate it in the special branch - control as the function of the constitutional control is its prime function [12]. However the most common point of view is that the Constitutional Court has the dual nature. For example, in the opinion of professor B.S. Ebzeev, the Constitutional Court "possesses the dual legal nature. On the one hand, the Constitutional Court is the constitutional body of the state and in the given quality ranks with the other constitutional bodies of the state - the President of the Russian Federation, the Federal Assembly of the Russian Federation, the Government of the Russian Federation" [13]. We are more imposed with the opinion of those who admits the decision of the constitutional court as the independent source of the law [14].

At the same time it is necessary to take into account, that the constitutional courts make various decisions: about interpretation of constitutions, admission of statutory acts or their parts corresponding or not corresponding to constitutions, by results of consideration of disputes on the competence between bodies of the government, etc. The Source of the law is also the legal position of the constitutional court. And the legal position does not possess the same validity, as the decision of the constitutional court about interpretation of the constitution or admission of the statutory act not corresponding to the constitution. It is obligatory, but its no execution leads to the same consequences, as at no execution of court decisions.

According to Article 80 of the Federal constitutional law "About the Constitutional Court of the Russian Federation" in the wording of December, 15, 2001 bodies of the government and officials are obliged to take measures if by decision of the Constitutional Court of the Russian Federation the statutory act is admitted not corresponding to the Constitution of the Russian Federation in full or in part or the decision of the Constitutional Court of the Russian Federation results in necessity of elimination of blanks in legal regulation. The supreme official of the subject of the Russian Federation not later than two months after publication of the decision of the Constitutional Court of the Russian Federation cancels the statutory act admitted unconstitutional, adopts the new statutory act or makes changes and-or additions in the statutory act admitted unconstitutional in its separate part. If on the expiry of two months after publication of the decision of the Constitutional Court of the Russian Federation the supreme official of the subject of the Russian Federation does not take measures in connection by the decision of the Constitutional Court of the Russian Federation, the mechanism of responsibility stipulated by the federal legislation is applied.

Responsibility for no execution of the legal position of the Constitutional Court of the Russian Federation is not stipulated in the given law. It is not also stipulated in the Federal law "About the general principles of the organization of legislative (representative) and executive agencies of the subjects of the Russian Federation" from October 6, 1999. Therefore, the legal regulations of the constitutional courts are realized with great delay.

According to Article 77 of the Constitution of the Republic of Komi adopted on February 17, 1994 laws and other statutory acts are adopted by the State Council in sessions if the majority from the number of the elected deputies has voted. On April 12, 1995 the Constitutional Court of the Russian Federation in the resolution on the case about interpretation of Articles 103 (Part 3), 105 (Parts 2 and 5), 107 (Part 3), 108 (Part 2), 117 (Part 3) and 135 (Part 2) of the Constitution of the Russian Federation expressed the legal position, that acts of the parliament should embody interests of the majority of the society, instead of the parliamentary majority. It can be provided if the majority from the established number of deputies has voted for the law. With adoption by the majority from the given number of the decision in all cases it is taken into account the will of representatives not less than half of voters owing to which presence of vacant mandates of deputies cannot affect results of voting.

Only four and a half years later there have been brought changes into the Article 77 of the Constitution of Republic Komi. In the new wording laws are adopted by the majority of voters from the number of deputies established by the Constitution. We believe that it has been done not because there exists the legal position of the Constitutional Court of the Russian Federation, but in connection with occurrence of the corresponding norm in the Federal law "About general principles of organization of the legislative (representative) and executive agencies of the subjects of the Russian Federation". Apparently, the federal legislator has taken into account the legal position of the Constitutional Court of the Russian Federation.

The Customs Code of the Pridnestrovskaia Moldavskaia Respublika was adopted by the Chamber of Legislators of the Supreme Soviet of the Pridnestrovskaia Moldavskaia Respublika on January 31, 2000 and approved by the House of Representatives of the Supreme Soviet of the Pridnestrovskaia Moldavskaia Respublika on February 22, 2000.

According to the preamble, it determines the principles of organization of the customs affair in the Pridnestrovskaia Moldavskaia Respublika, i.e. the legal, economic and organizational bases directed to protection of economic sovereignty and economic safety of the Pridnestrovskaia Moldavskaia Respublika, to stabilization of foreign economic relations, to protection of rights of the citizens and managing subjects, to control of observance of duties in the sphere of the customs affair [1]. The majority of articles of the Code correspond to these directions. Therefore, taking into account the great extent of customs border between Ukraine and the Pridnestrovskaia Moldavskaia Respublika, active moving of goods and vehicles through the joint border, great number of persons, crossing it with the luggage, including the Ukrainian businessmen, for maintenance of optimum moving of goods, vehicles and other subjects, and in order to prevent their conflicts with the customs authorities of Pridnestrovie, it is necessary to know the basic requirements of this Customs Code. All this compels to make some general remarks concerning the contents of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika

As it has been adopted earlier, than the Customs Codes of Ukraine, the Russian Federation, Byelorussia, the separate regulations do not coincide with the regular position of principle of similar codes of Ukraine, Russia and Byelorussia and as the customs statistics testifies, the citizens of the given countries cross the customs border of the Pridnestrovskaia Moldavskaia Respublika. Thus, Article 1 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika establishes, that the customs affair in the Pridnestrovskaia Moldavskaia Respublika make: the customs policy of the Pridnestrovskaia Moldavskaia Respublika and means of its realization, i.e. the order of moving of goods, vehicles, collection of customs payments, customs registration, control and other means of carrying out of the customs policy. However, in the Ukrainian materials the given regulation has been subjected to doubt. The main argument was that the customs affair s, as a matter of fact, is the certain kind of activity of the state, and just the policy of the state, and in this case the customs should determine the contents of its activity [2].

At the same time it is necessary to pay attention to the fact that Article of the 2 Customs Code of the Pridnestrovskaia Moldavskaia Respublika determining the purposes of the customs policy of Pridnestrovie, as against Article 2 of the Customs Code of Ukraine characterizing of the customs policy of Ukraine much more in detail formulate the given purposes.

Second, it is necessary to pay attention to distinctions in organization of the customs affair of Pridnestrovie and Ukraine. Thus Article 12 of the Custom Code of the Pridnestrovskaia Moldavskaia Respublika establishes that the customs affair is directly realized by the customs bodies of the Pridnestrovskaia Moldavskaia Respublika making uniform system comprising: State customs committee of the Pridnestrovskaia Moldavskaia Respublika; customs; customs posts; customs check points. Thus, it is emphasized, that the customs bodies of the Pridnestrovskaia Moldavskaia Respublika comprise the system of the Government of Pridnestrovie. And the State customs service of Ukraine is the body of the central executive authority with the special status determined by the President of Ukraine and who accordingly appoints head officials of the service.

According to article 24 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika the customs system of the Pridnestrovskaia Moldavskaia Respublika comprises the specialized organizations subordinated to the State customs committee of the Pridnestrovskaia Moldavskaia Respublika while in Ukraine the system of customs code is made of the customs bodies and the specialized customs establishments, instead of organizations as it is affirmed in the Customs Code of the Pridnestrovskaia Moldavskaia Respublika. There are some essential distinctions between the concepts.

However it is necessary to emphasize inclusion by the legislator of the Pridnestrovskaia Moldavskaia Respublika in the competence of the customs bodies of powers on realization of operative - search work and carrying out of pre-judicial investigation on cases about smuggling and other infringements of customs rules. The fact is that our customs bodies, despite of numerous offers of theoretic and practicing officials about their inclusion in number of the subjects possessing operative - search powers and in this connection about entry of changes into the Law of Ukraine " About operative - search activity " have still not been realized. However it would be desirable to pay special attention to the following. First, granting the customs bodies of the Pridnestrovskaia Moldavskaia Respublika with carrying out not only inquiry, but also investigation before judicial case on smuggling. Second, the Customs Code of the Pridnestrovskaia Moldavskaia Respublika allocates the customs bodies with the right of carrying out of inquiry and pre-judicial investigation not only on cases of smuggling, but also other crimes connected with infringement of the order of moving of goods through the customs border.

The criminal code of Ukraine has considerably expanded the circle of acts considered as the crime in the sphere of the customs affair: article 199, establishing responsibility for manufacturing, storage, purchase, transportation, transfer, import to Ukraine for the purpose of selling or selling of counterfeit money, state securities or tickets of state lottery; article 268, fixing the responsibility for illegal import on the territory of Ukraine of wastes and secondary raw material, and also the number of other articles.

The analysis of judiciary practice testifies that in no event after adoption of the Code (2001) no cases about such crimes have been excited. In our opinion, it is connected with the fact that the customs does not fix these infringements. This duty is assigned on other bodies which naturally do not possess the necessary information.

Therefore such sequence of legislator of the Pridnestrovskaia Moldavskaia Respublika about increase of authority of customs bodies in the system of struggle with criminality should be approved and it can be the reference point and for the legislator of Ukraine who has done not enough for increase of image of customs service of our state.

At the same time a number of regulations of working Customs Code of the Pridnestrovskaia Moldavskaia Respublika cause doubts in businessmen and physical persons concerning their conformity to the Constitution of the Pridnestrovskaia Moldavskaia Respublika. And it is necessary to note the principle position of the Constitutional court of the Pridnestrovskaia Moldavskaia Respublika which within the year 2006 has considered a number of cases on complaints concerning conformity of separate regulations of the Code to the Constitution. The three cases considered by the Constitutional court are characteristic in this respect: 1) About the verification of constitutionality of articles 448, 449 the Customs Code of the Pridnestrovskaia Moldavskaia Respublika regarding imposing by customs bodies of the sanction as confiscation of property stipulated by Part One article 353 of the Customs code of the Pridnestrovskaia Moldavskaia Respublika on the complaint of the citizen Karaman Vasiliy Petrovich from March 14, 2006; 2) About the verification of constitutionality of subitem 1) Part One article 455, Part One Article 147, Part Two article 468 in interrelation with subitem 2) Part One article 325 of the Customs code of the Pridnestrovskaia Moldavskaia Respublika on the complaints of the citizens Frunza Anatoliy Georgievich, Siloch Alexander Ivanovich, Ushatov Vladimir Vasilievich, Terziyskiy Michail Mikhailovich and Ilchev Igor Georgievich from April 25, 2006; 3) About the verification of constitutionality of subitem 1) Part One article 455 in interrelation with article 330 of the Customs code of the Pridnestrovskaia Moldavskaia Respublika on the complaint of the citizen Bespalenko Alexandr Nikolaevich from December 12, 2006.

On the first case the applicant asserts that confiscation of the property of the society with limited liability "The Shelter of wanderers" on the decision of head of the Tiraspol customs infringes his rights of the proprietor as according to Part Three Article 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika nobody can be deprived the property, otherwise on court decision.

In turn the Constitutional Court, having considered the materials of the case, has decided to admit not corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika, its article 37 (Part Three), regulation of part one article 353, regulation of articles 448, 449 of the Customs code of the Pridnestrovskaia Moldavskaia Respublika regarding, giving the right to the customs bodies of the Pridnestrovskaia Moldavskaia Respublika and their officials to apply at disposal of legal proceeding about infringement of customs rules as administrative punishment the confiscation of goods and the vehicles being the direct object of the offence.

On the second case the applicant considers, that the powers of the officials of the customs bodies on removal of decisions about imposing penalties on results of consideration of the case about infringement of the customs rules, stipulated by subitem 1) Part One Article 455 of the Customs code of the Pridnestrovskaia Moldavskaia Respublika, contradict the Constitution of the Pridnestrovskaia Moldavskaia Respublika, namely Part Three article 37 providing, that no one can be deprived the property, otherwise on court decision of items 1 and 2 article 80 stipulating that justice in the Pridnestrovskaia Moldavskaia Respublika is realized only by court; the judicial power is realized by courts by means of the constitutional, civil, administrative, criminal and arbitration legal proceedings.

The Constitutional court of the Pridnestrovskaia Moldavskaia Respublika has admitted not corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika, its Article 37 (Part Three) regulations contained in subitem 1) part one article 455, part two 468 in interrelation with subitem 2) Part one article 325 of Customs code of the Pridnestrovskaia Moldavskaia Respublika, giving the right to the customs bodies of the Pridnestrovskaia Moldavskaia Respublika and to their officials to impose at consideration of cases about infringement of customs rules as administrative punishment of collecting as the penalty as fine and to take measures to their subsequent indisputable collecting.

On the third case the applicant considers, that subitem 1) Part One article 455 in interrelation with article 330 of the Customs code of the Pridnestrovskaia Moldavskaia Respublika allocating officials of the customs bodies of the Pridnestrovskaia Moldavskaia Respublika with the right independently, without decision of judicial bodies to impose penalty as fine for the offences stipulated by Part One article 360 of Customs code of the Pridnestrovskaia Moldavskaia Respublika with collecting the cost of goods being the direct object of infringement of the customs rules, results in deprivation of citizens of a part of their property and thus contradicts article 37 ( Part Three) and Article 80 (items 1 and 2) of the Constitution of the Pridnestrovskaia Moldavskaia Respublika

The citizen Bespalenko A.N. applies to consider the question about constitutionality of subitem 1) Part One article 455 in interrelation with article 330 of Customs code of the Pridnestrovskaia Moldavskaia Respublika and to admit the specified norm not corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

By the decision of the Constitutional court the regulation of subitem 1) Part One Article 455 in interrelation with Article 330 of the Customs code of the Pridnestrovskaia Moldavskaia Respublika regarding, giving the right to the customs bodies of the Pridnestrovskaia Moldavskaia Respublika and to their officials to impose at consideration of legal proceeding about infringement of the customs rules as administrative punishment of collecting as collecting of cost of goods being the direct object of infringement of the customs rules, has been admitted not corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika, its article 37 ( Part Three).

I.e. the application of the citizens to the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika with the request to verify constitutionality of separate articles of the Customs code has caused beginning of a number of proceedings. It is natural, that in the given work we are not capable to make in full the detailed analysis of the citizens carried out proceedings on the applications of the citizens for conformity of some articles of the Customs code of the Pridnestrovskaia Moldavskaia Respublika to the Constitution of this country. We shall only note approval by the Constitutional court of the adopted resolutions on the given cases, and the court has paid attention to illegality of the disputed articles not only from the point of view of their discrepancy to the norms of the substantive law, designated in the Constitution of the Pridnestrovskaia Moldavskaia Respublika, but also to the separate procedural requirements, proceeding from the sense of this Constitution. We can only approve such position of the Constitutional court of the Pridnestrovskaia Moldavskaia Respublika, as the resolutions made on the above mentioned cases do not only enter separate regulations of the Customs code of the Pridnestrovskaia Moldavskaia Respublika in the constitutional field, but also provide their realization.

In this respect the typical is the already above mentioned proceeding on the case about the verification of constitutionality of subitem 1) Part One Article 455 in interrelation with article 330 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika on the complaint of the citizen Bespalenko Alexandr Nikolaevich. In the resolution the Constitutional court has specified, that the constitutional regulations about judicial guarantees of the right to property provide inadmissibility of collecting of cost of the goods being the direct object of infringement of customs rules on the decision of the administrative body in simplified procedure, not providing consideration of the case by the court, that is inadmissibility of deprivation of the person of the property without the judgment.

And, from our point of view, the important opinion of Constitutional court of the Pridnestrovskaia Moldavskaia Respublika concerning discrepancy of Part II Article 461 of the Customs code of the Pridnestrovskaia Moldavskaia Respublika, establishing the order of appeal of penalties imposed for customs offences, to requirements of the Constitution of this republic. It is interesting not only has that resulted the Customs Code in the constitutional field, but by the contribution to the theory of administrative and customs law. The case has been excited in Constitutional court on the complaint of Golubchenko S.V., and the resolution on it has been made on February 13 2007. According to the complaint the applicant specified, that on May 17, 2006 Head of the Tiraspol customs has made the decision about imposing on him the official penalty. The given resolution has been appealed against by him in the Arbitration court of the Pridnestrovskaia Moldavskaia Respublika. By the definition the Arbitration court of the Pridnestrovskaia Moldavskaia Respublika from July 8, 2006 on the arbitration case No.574/06-08 the complaint has been left without consideration in connection that the applicant has not observed the pre-judicial order of settlement of the dispute with the respondent as it is stipulated by the law for the given category of disputes. The obligatory pre-judicial order of appeal of the resolution of the customs body is stipulated in Article 461 of the Customs code of the Pridnestrovskaia Moldavskaia Respublika. Thus, according to the citizen Golubchenko S.V., he has been deprived directly in the judicial order of the right to protect his infringed rights without obligatory preliminary up to the judicial application to the higher administrative body. According to Part Two article 461 of the Customs code of the Pridnestrovskaia Moldavskaia Respublika the resolution of the customs body of the Pridnestrovskaia Moldavskaia Respublika about imposing penalty can result in the complaint to the State customs committee of the Pridnestrovskaia Moldavskaia Respublika. Within ten days from the date of decision-making on the complaint by the State customs committee of the Pridnestrovskaia Moldavskaia Respublika the given decision and-or resolution about imposing penalty can be appealed in the Arbitration court of the Pridnestrovskaia Moldavskaia Respublika.

The court has considered, that the opportunity of application to the higher body or official in the order of subordination with the complaint of actions with the body of the government and managements or the official as pre-judicial stage can be established by the legislator solely as the additional guarantee by which the citizen can apply at his own discretion - or to apply directly in court with the complaint, or to apply to the higher state body or official by way of subordination. Application of pre-judicial procedure is the right, instead of the duty. Therefore the court established:

1) To admit not corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika regulations of Part Two article 461 of the Customs code of the Pridnestrovskaia Moldavskaia Respublika regarding, establishing compulsion of the preliminary application with complaint to the State customs committee of the Pridnestrovskaia Moldavskaia Respublika up to application to the Arbitration court of the Pridnestrovskaia Moldavskaia Respublika

Unfortunately, such attention of the Constitutional Court of Ukraine to the verification of constitutionality of separate regulations fixed in the Customs code of Ukraine is not observed. But such questions arise. For example, Article 13 of the Customs code of Ukraine saying: "Specially the authorized central enforcement authority in the field of the customs affair" specifies, that the specially authorized central enforcement authority in the sphere of the customs affair is created, reorganized and liquidated by the President of Ukraine at presentation of the Prime minister of Ukraine. Part 5 of the given Article stipulates that specially the authorized central enforcement authority in the field of the customs affair is headed by the official appointed to the position and dismissed from it by the President of Ukraine.

However, the current Constitution (Article 106) does not give the President such powers, moreover, according to Chapter VI of the Constitution such powers are given to the Cabinet of Ukraine. Other enforcement executive agencies do not contain the so-called "central enforcement agencies with the special status". However let's speak about mutual relations between the President, the Supreme Rada and the Prime minister on distribution of imperious powers and let's try to estimate some norms of the Customs code of Ukraine from the point of view of their conformity to articles of the Constitution of Ukraine, Chapter I "General Regulations" from the position of the concrete citizen. First of all, we shall pay attention to the question on conformity of Article 326 Customs codes of Ukraine to requirement of Article 41 of the Constitution of Ukraine. Item 4 Article 41 of the Constitutions stipulates, that no one can be illegally deprived his right to property. Confiscation of property can be applied extremely on court decision in cases, volume and order established by the law, and item 6 stipulates, that confiscation of property can be applied extremely on court decision of court in cases, volume and the order established by the law.

The analysis of some resolutions of the Constitutional court of the Pridnestrovskaia Moldavskaia Respublika by means of which a lot of articles of the Customs code of this republic has entered the constitutional field, testifies to the active and purposeful work allowing operatively to react to the revealed facts, testifying to contradictions between the Constitution and the current legislation (and not only customs that is proved in practically each issue of the annual edition of the Constitutional Court "The Bulletin of Constitutional court of the Pridnestrovskaia Moldavskaia Respublika" covering all court decisions

Unfortunately, the Constitutional court of Ukraine has no opportunity to be proud of such hard work and to be proud of the influence on the quality of the current legislation in the country, including the customs legislation. And, the fact is, that the reason is in the Constitution of Ukraine, Article 150 specifies as subjects of application in court of the President of Ukraine, not less than 45 People's Deputies; the Supreme Court of Ukraine; the Plenipotentiary of the Supreme Rada on human rights; the Supreme Rada. Thus, the person, according to Article 3 of the Constitution of Ukraine being defined as the supreme social value, is deprived of his right of application of the Constitutional Court of Ukraine Ukraine for the verification of conformity of a number of regulations of the current legislation to the requirements of the Constitution fixing his rights. Nevertheless, a number of domestic and especially foreign experts in the sphere of the constitutional law insist that the Constitution of 1996 is the most democratic in the world, I would like to specify, that in the most antidemocratic states (Russian Federation, Republic of Byelorussia, others) the right to apply to the Constitutional courts is given to the citizens. Thus, the analysis of corresponding regulations of the Constitution of the Russian Federation and the Federal Constitutional Law "About the Constitutional Court of the Russian Federation" allows revealing the following categories of subjects of the right to apply to the Constitutional Court of the Russian Federation:

1) Specially authorized supreme bodies of the government of the Russian Federation and its subjects;

2) Courts of the Russian Federation;

3) Citizens of the Russian Federation and their associations.

The application to the Constitutional Court of the Russian Federation of the subjects relating to each of the listed categories is realized within the framework of the special procedure essentially distinct from the rules, established for the subjects belonging to other categories. The Russian scientist Kudryavtsev М. considers, that the major subjects of the right to application to the Constitutional Court of the Russian Federation with the constitutional complaint shall be citizens. The unique requirement showed to the citizen, wishing to apply to the Constitutional Court of the Russian Federation - is that he should be the person, whose rights and freedoms are infringed by the law applied or subjected to application in the concrete case. There are no any their requirements to citizens, including requirements about coming of age and capacity, in the Federal Constitutional Law about the Constitutional Court. The obligatory presence of the applicant on the territory of the Russian Federation is not also required. In practice the category "citizens of the Russian Federation" [3] is treated wide. This term comprises the whole set of physical persons (individuals), but not those who possess the Russian citizenship.

According to Article 22 the competence of the Constitutional court of Republic of Belarus of "The Code of Republic of Belarus about court structure and the status of judges" applications of the citizens transmitted directly to the Constitutional court of Republic of Belarus, are considered in the order established by the Law of Republic of Belarus from June 6, 1996 "About applications of citizens" Sheets of the Supreme Soviet the Republic of Belarus, 1996, No. 21, page 376; National register of legal acts of Republic of Belarus, 2004, No. 189, 2/1089).

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