The Purpose and the Functions of the Institute of Dissenting Opinion of Judge in the Constitutional Proceeding

Abstract

At the end of October 2021, the Constitutional Court of the Russian Federation celebrated its 30-year anniversary. Dissenting opinions of constitutional judges was playing an important role in the establishment and development of constitutional justice in Russia, democratic foundations and principles and the protection of human rights. Judges actively used their right to express dissenting opinions. Thus, during the whole period of the Constitutional Court›s work 27 of 32 judges used the right to express dissenting opinions. 418 dissenting opinions were published. However, quantitative indicators do not fully reflect the purpose and role of this institution for the development of Russian law and science. Functions and goals of the legal institute allows to determine its mission in the legal regulation and help to evaluate the effectiveness of its work. In other words, we can understand the purpose for which this institute is built into the relevant legislative regulation. In this article, author identifies the sole purpose of the institute of dissenting opinion in constitutional proceeding: the development of law and the rule of law. By further decomposing the purpose, three groups of functions of this institution are identifi ed: intrasubjective, organizational and external, which are divided into a number of subfunctions. The practice of the Constitutional Court of previous years demonstrates that in the case of granting to a judge the right to express dissenting opinion with its further publication, not only all three groups of functions of this institution are fulfi lled, but also the achievement of the institution's purpose is inevitable. In the current legal regulation, after the 2020 reform, two groups of functions are blocked and are not fulfi lled due to the fact that dissenting opinions are no longer published. This leads to the conclusion that the judge's right to express a dissenting opinion is not properly implemented, and the institution itself is not working effectively.