Constitutional Proceedings Research Articles

ADAPTATION OF THE WORLD EXPERIENCE OF CONSTITUTIONAL JUSTICE IN THE REPUBLIC OF KAZAKHSTAN

The study contains an analysis of theoretical and practical issues of adapting the world experience of constitutional justice to the national legal system of the Republic of Kazakhstan. Based on general scientific and special scientific methods (historical and legal analysis, structural and functional, comparative legal, regulatory and others) the article discusses the experience of the best world practices, different jurisdictions, an attempt was made to create a model of constitutional justice that meets modern requirements in the Republic of Kazakhstan, aimed at the effective protection of human rights.The institution of constitutional control, which is constantly in different phases of transformation, is adapting in the legal systems of the states of the young democracy. The article presents a study of the adaptationof world experience in the development of the institution of constitutional control into the national legal system of the Republic of Kazakhstan. Issues of imperfection of the current legislation of the Republic of Kazakhstan regulating public relations related to the organization of constitutional proceedings, as well as ensuring effective practice of its application, have been identified.The study contains a number of practical proposals for improving the status and competence of the Constitutional Court of the Republic of Kazakhstan. In the orbit of the results -recommendations on expanding the powers of the constitutional control body to check for compliance with the Constitution of the newly adopted constitutional laws, as well as laws introducing amendments and additions (according to the mandatory procedure); to limit the powers of the President to challenge any existing legal acts in the Constitutional Court, to give the Constitutional Court the right to check for compliance with the Constitution of the existing international treaties of the Republic of Kazakhstan, as well as the official interpretation of the norms of constitutional laws on its own initiative, or at the request of the Supreme Court of the republic.

Authority of Amicus Curiae in Constitutional proceedings : Bridging Society and the Constitutional Court

Amicus Curiae, or friends of the court, is an important instrument in constitutional proceedings in Indonesia even though it does not yet have a standard legal basis. This study discusses the authority of Amicus Curiae in providing additional information, enriching the judge's consideration, and supervising the proceedings of the Constitutional Court. The method used is the literature study approach, which is a research method whose series of research is related to the method of collecting library data, or research whose object of research is studied through various literature information, such as: books, journals, articles and documents. Amicus Curiae is filed in the form of a written document containing legal arguments and other relevant analysis. The Constitutional Court has the authority to reject Amicus Curiae that are judged irrelevant or filed with improper motives. On the other hand, a quality Amicus Curiae can have a positive influence on the decisions of the Constitutional Court and contribute to law enforcement and democracy in Indonesia. Amicus Curiae has not been clearly regulated in Indonesia, but in principle it is accepted under article 5 paragraph 1 of the Law on Judicial Power "Judges and constitutional judges are obliged to explore, follow and understand the legal values and sense of justice that live in society. Furthermore, the confession of the Amicus Curiae can be found in article 180 paragraph 1 of the Code of Criminal Procedure which states that "In the event that it is necessary to clear up the sitting of the matter arising in court, the presiding judge of the trial may request expert testimony and may also request to submit new material by the interested person.

ON EQUALITY OF THE PARTIES WHEN RETURNING A CRIMINAL CASE FROM THE MAIN TRIAL STAGE TO THE PRELIMINARY HEARING STAGE

The author of the article, who took part in the constitutional proceedings as an expert, sets out the key provisions of her conclusion at the preliminary stage of consideration of the appeal to the Constitutional Court of the Republic of Kazakhstan by citizen R.A. Naushabayeva. Reasoned provisions, conclusions and recommendations of the expert opinion prepared by him are presented, based on the analysis of relevant international and national regulatory legal sources of legislation, the study of special literature and the doctrinal interpretation of the relevant norms of legislation in the field of criminal and criminal procedural law.

Constitutional Proceedings in the System of Procedural Forms of Protection of Public Rights

Constitutional Proceedings in the System of Procedural Forms of Protection of Public Rights

On the Content of the Principle of Balance Public – Private Interests

The article substantiates the interrelation of the non-positivistic legal system based on consideration of the inherent in the law aspiration to justice, with the necessity of highlighting the principle of balance of public and private interests. The results of the main comprehensive scientific research in the fi eld that are based on the consideration of public and private interests balance as a basic legal idea as well as the necessity of its implementation in constitutional and international justice are highlighted. The author concluded that there is constitutional and legal basis for distinguishing the balance of public and private interests as a general legal principle, as well as general approaches to its content in both legal theory and sectoral legal sciences. In order to eliminate the difference in terminology used (balance of interests, ratability, proportionality, balance of constitutional values), it is proposed to use the phrase «balance of public and private interests». In the author’s view, the use of such terminology underlines that the principle under consideration is primarily addressed to the legislator and allows to focus on the objectives for the achievement of which legal regulation is established in certain areas of public relations. Other terms are used mostly in relation to the implementation of this principle in constitutional justice. The dualistic principle to determine the content of the principle of balancing public and private interests is proposed. Firstly, the principle under consideration is about the duty of the legislator and the court to use the necessary and sufficient means to ensure a fair relationship between different interests in establishing legal regulation and resolving disputes. The second approach has instrumental significance and is related to the implementation of this principle within the framework of constitutional proceedings on the basis of proportionality and balance of constitutional values.

The Role of the Constitutional Complaint Institute in the Reform of Life Imprisonment in Ukraine

The author explores the place and significance of the constitutional complaint institution in implementing international standards related to life imprisonment in the national legal system. Recently, following the development of these standards in international human rights law, the European Court of Human Rights declared that the absence of a predictable and transparent mechanism for reducing life imprisonment in Ukraine violates human dignity and contradicts Article 3 of the European Convention on Human Rights. In alignment with this perspective, in 2020, the Constitutional Court of Ukraine deemed unconstitutional provisions that prohibited parole from life imprisonment. The constitutional complaint served as a tool for Ukrainian authorities to advance the life imprisonment reform. Apart from the constitutional complaint, no other mechanism has made such a powerful influence in this process. Consequently, it is necessary to analyze the constitutional proceedings that preceded the decision and the ratio decidendi within the same decision.The paper outlines aspects of the national model of the institution of life imprisonment and international standards governing this penalty. Discrepancies in these systems are identified, and the author investigates constitutional complaints filed in response to these disparities, along with the relevant constitutional proceedings. Subsequently, the author places significant emphasis on the decision of the Constitutional Court of Ukraine resulting from the consideration of the aforementioned complaints. In the author’s opinion, this decision acted as the driving force behind the continued reform of life imprisonment. The work also briefly outlines the prospects and challenges of life imprisonment reform, implemented even under martial law conditions.

The evaluation concepts – a necessary means of achieving the constitutional idea of legal certainty or a factor leading to its violation?

The subject of the research is the study of evaluative concepts included by the legislator in legal norms in order to ensure dynamic legal regulation of social relations. The problem of using evaluative concepts is of scientific interest, since the unreasonable inclusion of such concepts in the content of a legal norm can lead to a violation of the constitutional idea of legal certainty, and their interpretation and practical application to specific situations largely depends on the level of legal awareness of the law enforcer.The author aims to analyze approaches to understanding the category of “evaluative concepts”, identifies signs that characterize this category, its role in the legal regulation of social relations.The methodology of scientific research is represented by a complex of private scientific, formal legal, systemic and structural methods.The main results. The author establishes the features of the inclusion of evaluative concepts in the legal norms based on the analysis of the practice of the Russian Constitutional Court, provides interesting cases considered in the framework of the constitutional proceedings. In particular, the author provides examples of the inconsistency between established judicial practice and the practice of the Russian Constitutional Court, and also establishes the need to apply evaluative concepts in both private and public law.Conclusions. The inclusion of evaluative concepts in legal norms is relevant for many areas of law, which is due to the need to ensure the flexibility and dynamism of legal regulation. However, the possibility of their application should not be unlimited, since this may lead to a violation of the fundamental principles of law, including the principle of legal certainty.

Evidence and proving in constitutional proceedings: doctrinal aspects

It was noted that the realities of social life, the political situation, global processes of transformation of phenomena and processes require legal accuracy in understanding the fundamental prescriptions specified by the Constitution, as well as ensuring the compliance of legislation with its provisions. Regarding the first question, there are two ways of solving it: detailing the provisions, which to a certain extent creates bulky codified texts that are difficult to apply, or clear, comprehensive formulations of constitutional norms, which provide for the establishment of fundamental principles of the functioning of state power and society, without detailed extended texts. It was noted that the institution of judicial evidence in constitutional proceedings is not as carefully regulated as in proceedings in criminal, arbitration and civil cases.
 It is indicated that the constitutional court process is a special environment that differs from other court processes existing in our country: in the field of activity, powers of judicial bodies, subjects, stages, legal force of decisions. Peculiarities of the environment where proof is carried out certainly give rise to specificity in the subject of proof, subjects, content and types of proof. This creates the need for more detailed regulation of proof and evidence in constitutional proceedings. In our opinion, proof is a type of cognitive process that is carried out in the order established by law and covers the activities of subjects involved in constitutional proceedings. And therefore, evidence in constitutional proceedings is a type of knowledge that is carried out in the order established by law and covers the activities of the subjects involved in constitutional proceedings, at the same time it represents a combination of both cognitive and procedural activities. The cognitive component characterizes the process of cognition, and the procedural component characterizes the special form that cognition takes within the framework of the rules of constitutional justice. At the same time, the construction of the subject of proof in constitutional proceedings follows (corresponds) to the construction of the subject of proof adopted in national law. However, we draw your attention, it would be worthwhile to normalize the specificity of the subject of proof in constitutional proceedings as a process aimed at solving legal issues.

Practice of the Constitutional Court of Ukraine with respect to state protection of competition in entrepreneurial activities

This article aims to provide an overview of the practice of the Constitutional Court of Ukraine (the “CCU” or the “Court”) related to constitutional principles of state protection of competition in entrepreneurial activities, to determine the state of development of such practice and to analyse it.
 The article provides a comprehensive analysis of the existing CCU’s decisions adopted following review of constitutional submissions, where issues related to state protection of competition were raised, the CCU’s positions set out in these decisions, as well as the CCU’s practice of considering constitutional complaints challenging constitutionality of certain provisions of Ukrainian legislation on protection of economic competition. System analysis of the CCU’s acts on the researched issues, Ukrainian legislation in force at the time of elaborating the article, and that in force at the time of adoption of relevant decisions by the CCU, as well as works of Ukrainian scholars relevant to the article’s objectives, were the main methodological basis for the research.
 The analysis of the CCU’s practice on the researched issue does not allow for stating that it is very developed. Nevertheless, certain important issues have arisen before the CCU over the years of its activity. During the decade of 2000-2010, the CCU adopted a number of decisions clarifying the substantive content of constitutional provisions on state protection of competition, as well as outlining distribution of authorities between different branches of power in determining types and boundaries of monopolies, as well as in establishing competition rules. The period after 2010 has not yet been marked by adoption of remarkable CCU’s decisions on the researched topic.
 Analysis of the CCU’s practice with respect to consideration of constitutional complaints shows their active use by business entities in order to challenge constitutionality of certain provisions of Ukrainian legislation on protection of economic competition. Despite the lack of success of such complaints to date, their contents and direction, which can be understood from relevant rulings on refusal to initiate constitutional proceedings, allow to identify problematic aspects of application of Ukrainian competition laws and define appropriate decisions to address them.

Constitutional Court of Ukraine - reform in the direction to European integration of Ukraine

It is indicated that a number of issues arising in connection with the activity of the Constitutional Court of Ukraine need to be resolved: 1) the num­ber of judges, 2) the amount of their financial sup­port in the conditions of martial law; 3) the term for which judges are appointed; 4) appointment procedure; 5) issues of the KSU Regulations; 6) issues of the Scientific Advisory Council of the KSU, etc. Since the KSU is the only body of constitution­al jurisdiction in Ukraine, questions regarding the reform of its structure and activity do not interfere with relevance, sometimes gaining great public res­onance. From a practical point of view, the ques­tion of the decisions made by the Court regarding their constitutionality and the possibility of appeal is important, because the mistakes made by judges create an unacceptable situation in the legislation of the country. Illegal dismissal of KSU judges by decree of the President of Ukraine, whose authority is currently not included, also becomes relevant.
 It is proposed to make comprehensive changes to some provisions of current legislation of Ukraine relating to the activities of the CCU (Articles 148, 151-2, 106 of the Constitution of Ukraine, Articles 9, 10, 11, 21, 30, 33, 41 and 75 of the Law of Ukraine "On the Constitutional Court of Ukraine”, to Article 46 of the Law of Ukraine” On the Judicia­ry and the Status of Judges ", to paragraphs 5, 22 and 23 of the Regulations on the Scientific Advisory Board of the CCU) in order to optimize the activities of the CCU.
 І consider it expedient: 1) to allow the President of Ukraine to appoint the Chairman of the CCU to resolve uncertainties and contradictions (to amend Part 4 of Article 33 of the Law of Ukraine "On CCU” and Article 148 of the Constitution of Ukraine), 2) to improve Art. 9, art. 21 of the Law of Ukraine "On CCU” and paragraph 22 of Art. 106 of the Con­stitution of Ukraine and where it is clear that the President of Ukraine appoints to office the entire CCU with the consent of the Verkhovna Rada of Ukraine, and dismisses him by decree "On dismiss­al of judges of the Constitutional Court of Ukraine”. This will determine the full influence of the Presi­dent of Ukraine as the guarantor of the Constitution of the whole state, as well as ensure the proper functioning of the CCU; 3) amend paragraph 22 of the Regulations on the Scientific Advisory Board of the CCU to clarify the costs of its activities, and add paragraph 23 on the termination of the sta­tus of a member of the Council; 4) supported the proposal of V.O. Gergeliynyk to approve the Rules of Procedure of the CCU by the Verkhovna Rada of Ukraine, which is currently approved by the Court itself and thus contradicts Art. 153 of the Constitu­tion of Ukraine, which states that the procedure for organizing and operating the Constitutional Court of Ukraine, the status of judges of the Court, the grounds and procedure for appealing to the Court, the procedure for consideration of cases and exe­cution of decisions are determined by the Consti­tution of Ukraine and law. Deadlines have been set (two months for studying the materials of the con­stitutional petition (appeal) at the preliminary pre­paratory stage), which now begin their countdown from the moment of constitutional proceedings.

The President of the Russian Federation as a Party to the Constitutional Judicial Procedure

The paper deals with topical issues of legal regulation of the status of the President of the Russian Federation as a party to the constitutional judicial procedure, provides a detailed analysis of his constitutional procedural legal capacity. It is shown that the President of the Russian Federation can be both the applicant and can act on the side of the entity the constitutionality of the actions of which is disputed. The relevance of the study of the procedural standing of the President of the Russian Federation in the framework of constitutional proceedings is substantiated by the significant transformation of the status of the Head of State as a result of the Constitutional Reform of 2020. The paper analyzes legislative novelties that significantly expanded the procedural rights of the Head of State through the inclusion of new powers related to the appeal to the Constitutional Court of the Russian Federation. When assessing the role of the President of the Russian Federation as a party to the constitutional judicial procedure, it is concluded that there is a shift in the balance in the system of separation of powers in favor of the Head of State. This is especially evident when analyzing the President’s procedural status in cases of preliminary norm control.

Evidence and proving in constitutional proceedings: doctrinal aspects

It was noted that the realities of social life, the political situation, global processes of transformation of phenomena and processes require legal accuracy in understanding the fundamental prescriptions specified by the Constitution, as well as ensuring the compliance of legislation with its provisions. Regarding the first question, there are two ways of solving it: detailing the provisions, which to a certain extent creates bulky codified texts that are difficult to apply, or clear, comprehensive formulations of constitutional norms, which provide for the establishment of fundamental principles of the functioning of state power and society, without detailed extended texts. It was noted that the institution of judicial evidence in constitutional proceedings is not as carefully regulated as in proceedings in criminal, arbitration and civil cases.
 It is indicated that the constitutional court process is a special environment that differs from other court processes existing in our country: in the field of activity, powers of judicial bodies, subjects, stages, legal force of decisions. Peculiarities of the environment where proof is carried out certainly give rise to specificity in the subject of proof, subjects, content and types of proof. This creates the need for more detailed regulation of proof and evidence in constitutional proceedings. In our opinion, proof is a type of cognitive process that is carried out in the order established by law and covers the activities of subjects involved in constitutional proceedings. And therefore, evidence in constitutional proceedings is a type of knowledge that is carried out in the order established by law and covers the activities of the subjects involved in constitutional proceedings, at the same time it represents a combination of bothcognitive and procedural activities. The cognitive component characterizes the process of cognition, and the procedural component characterizesthe special form that cognition takes within the framework of the rules of constitutional justice. At the same time, the construction of the subject of proof in constitutional proceedings follows (corresponds) to the construction of the subject of proof adopted in national law. However, we draw your attention, it would be worthwhile to normalize the specificity of the subject of proof in constitutional proceedings as a process aimed at solving legal issues.

Compensatory Mechanism in Constitutional Justice: Problems of Legal Regulation and Practical Application

One of the goals of the activities of the Constitutional Court of the Russian Federation is to protect the rights and freedoms of man and citizen by recognizing as unconstitutional the norms applied in a particular case. Restoration of violated rights is carried out by reviewing the relevant case. At the same time, in some cases, due to the specifics of the relevant relations, when the review of the case was impossible or could not lead to the restoration of the violated rights of the applicant, it was not possible to compensate for the negative consequences of the violation of his rights. This circumstance made it impossible to fully ensure the completeness and effectiveness of constitutional proceedings. The introduction of the institute of compensatory mechanisms was aimed at solving this problem. However, sparing legal regulation, its ambiguous interpretation and various application in practice had a negative impact not only on the effectiveness, but also on the very applicability of this legal institution. Having analyzed both the decisions of the Constitutional Court of the Russian Federation and the rulings of general jurisdiction courts, the author considers the above problems as well as the reasons for their occurrence and proposes some ways to resolve them.

Восстановление нарушенных прав граждан средствами конституционного правосудия: проблемы теории и практики

The article shows the specifics of restoring the rights of citizens violated by unconstitutional norms of legislation, by revising the judicial acts previously issued in relation to them under the influence of the adopted decision of the Constitutional Court of the Russian Federation. On the basis of a systematic study of the practice of the highest judicial body of constitutional control, the main ways of influencing its decisions on judicial law enforcement in order to restore the rights of citizens who applied to the Constitutional Court of the Russian Federation are considered. The possibilities of using the means of constitutional justice to restore the rights of persons who were not participants in constitutional proceedings are shown, which appeared as a result of the 2020 reform.

New Realities of Revision of Judicial Acts that Have Entered into Force under New Circumstances in Civil and Administrative Proceedings

The paper analyzes amendments in procedural legislation (Federal Law No. 473‑FZ dated 30 December 2021 «On Amendments to Certain Legislative Acts of the Russian Federation») that have been relatively recently introduced into the institution for the revision of judicial acts that entered into force, due to new and newly discovered circumstances. The author points out a fragmentary nature and inconsistency of ideas, mistakes made when making, in fact, a revolutionary decision on the need to grant persons not participating in constitutional proceedings the right to review a previously resolved case. According to the author, adoption of the above changes may radically change the established, also in other legal systems, essential nature of an exceptional and extraordinary mechanism for resuming a case due to new and newly discovered circumstances. It is also noted how this innovation of the legislator may negatively affect the stability of judicial acts (the principle of legal certainty), which in the end may be fraught for such an important legal category as stability in civil law relationships.

Evidence in constitutional proceedings: conceptual foundations

It is indicated that the realities of social life, the political situation, global processes of transformation of phenomena and processes require legal precision in understanding the fundamental prescriptions specified by the Constitution, as well as ensuring the compliance of legislation with its provisions. The author emphasizes that. That evidence and the corresponding activities related to their collection, research, evaluation and use have long attracted the interest of scientists from various areas of legal science. The concepts of “evidence” and “proving” are among the central ones in science and practice, which necessitated a deeper study of these issues, the separation of a separate scientific direction - the theory of evidence, especially in constitutional proceedings.Admittedly, legal knowledge as an activity can be considered as a complex system consisting of a number of elements and having a certain structure, which allows us to talk about the technological process of reproduction of legal knowledge. Analysis of the internal structure of legal knowledge makes it possible to reveal all the features of this activity in a deeper and morecomplete way. Identifying and studying how legal knowledge is built is a necessary prerequisite for solving the problems of its scientific organization and management. In legal knowledge, the central link is the theory of evidence, the core of which- the concept of “evidence” - is interpreted quite differently, especially in the constitutional judiciary.It is noted that one of the main places belongs to the process of proving and collecting evidence in constitutional proceedings. This is due to the fact that it is on the basis of correctly collected evidence that a legal and fair judgment can be rendered, in addition, the trial itself will take place in compliance with one of the leading principles - competition and equality of the parties. At the same time, proof (regardless of the type of judicial procedure) has common features as a certain type of knowledge.It is asserted that since proof is a type of cognitive process that is carried out in the order established by law and covers the activities of subjects involved in constitutional proceedings, then proof in constitutional proceedings is a type of knowledge that is carried out in the order established by law and covers the activities of subjects of entities involved in constitutional proceedings, at the same time represents a combination of both cognitive and procedural activity. At the same time, evidencein constitutional proceedings in the most general terms is information about the circumstances and facts to be established in the case, aimed at establishing the constitutional content of the norms that are the immediate object of study, obtained with the help of judicial logic, the subject of which is judicial reasoning and forensic analytics.

Рarties to constitutional proceedings as subjects of proof

In conditions of concentrated review, the specificity of constitutional proceedings leads to a limitation of the limits of maneuvers provided to participants in the judicial process. Although the subjects of the constitutional process can be defined as real parties, their function remains limited. The existence of a dispute explains and justifies the development of an adversarial procedure that imitates the general principles of procedural law applied in ordinary courts. Constitutional justice has both subjective and objective consequences. As a result, the constitutional process appears as a place of indirect protection of the Constitution, where the individualistic concerns of the parties are mixed with the protection of the common good. Naturally, the parties are the first to be affected by this duality. Their action is primarily aimed at the protection of personal interests, but it also gives the constitutional judge the opportunity to ensure the objective protection of order. Thus, the simultaneous presence of subjective interests and the general interest gives an ambivalent character to constitutional disputes. Although it is impossible to eliminate this duality, it has been possible to give priority to the objective dimension of the dispute. The conflict between the participants in the legal process is consonant with the legal process, it is the origin and driving force of the proceedings. In response to this logic, the founder and legislator tried to recreate before the constitutional courts the conditions for a real dispute between the parties. For this purpose, the constitutional procedural texts define the persons and bodies that have the right to participate in the consideration of the case, taking care of the appointment of participants in the judicial process with opposing interests. Whatever the legal field, the legal process always takes the form of a confrontation, a struggle that takes place with the help of legal arguments. From this point of view, a trial is really a confrontation directed procedure. Proceedings are the arena of this organized struggle between two parties with opposing claims. The constitutional process also follows this model. It should be recognized that the specifics of the judicial process require certain adaptations to the principle of competition, but they do not go so far as to eliminate the structural element of the judicial process, namely the opposition of the parties. In constitutional disputes, the contradiction concerns the divergent interpretation of the Constitution.

Evidence in constitutional proceedings: issues of methodological foundations

It is indicated that the realities of social life, the political situation, global processes of transformation of phenomena and processes require legal precision in understanding the fundamental prescriptions specified by the Constitution, as well as ensuring the compliance of legislation with its provisions. Regarding the first question, there are two ways of solving it: detailing the provisions, which to a certain extent creates bulky codified texts that are difficult to apply, or clear, comprehensive formulations of constitutional norms, which provide for the establishment of fundamental principles of the functioning of state power and society, without detailed extended texts. The practice of international constitutionalism only confirms that the last version of constitutions is more convincing to apply. For example, the Constitution of the United States of America, approved in 1787, is still in effect today and has undergone only 27 amendments. Explaining the reasons for such stability, the famous American lawyer A. Cox points out that «the original Constitution still serves us well, despite the enormous changes in all areas of the life of the United States, because the creators of the Constitution had enough wisdom to invest in it exactly as much as was needed, but no more.»
 It is noted that one of the main places is given to the process of proving and collecting evidence in constitutional proceedings. This is due to the fact that it is on the basis of correctly collected evidence that a legal and fair judgment can be rendered, in addition, the trial itself will take place in compliance with one of the leading principles - competition and equality of the parties. At the same time, proof (regardless of the type of judicial procedure) has common features as a certain type of knowledge.
 It is claimed that proof is a type of cognitive process that is carried out in the order established by law and covers the activities of subjects involved in constitutional proceedings. And therefore, evidence in constitutional proceedings is a type of knowledge that is carried out in the order established by law and covers the activities of the subjects involved in constitutional proceedings, at the same time it represents a combination of both cognitive and procedural activities. The cognitive component characterizes the process of cognition, and the procedural component characterizes the special form that cognition takes within the framework of the rules of constitutional justice.

Актуальные проблемы представительства частных лиц в конституционном судопроизводстве

The doctrinal and applied problems of representation of individuals in constitutional proceedings are analyzed. It is indicated that there is no possibility of obtaining qualified legal assistance (representative services) by certain categories of citizens on a gratuitous basis due to the material factor. Recommendations are given on the resolution of individual problems of representation of individuals in constitutional proceedings.

On the Issue of Protecting the Rights of Participants in Shared-Equity Construction in the Bankruptcy Procedure of the Builder

The purpose of the study is to update the problem of restoring the balance of interests of creditors – participants in shared-equity construction in the bankruptcy case of the developer. We are talking not only about the priority protection of the rights and legitimate interests of citizens as participants in the construction, but also other persons who are not related to those within the meaning of bankruptcy legislation and suffered as a result of the bankruptcy of the debtor-builder. There is a lack of certainty in the implementation of legal regulation, which negatively affects the existing judicial practice. The current legal regulation assumes the unequal status of participants in shared-equity construction within the framework of the bankruptcy procedure, which has become the subject of constitutional proceedings. The relevance of the study lies in the assessment of the changes made in 2019 to the Law on Equity Participation in Construction and the position of the Constitutional Court of the Russian Federation, expressed in the Resolution of July 21, 2022. The practical significance of the study is determined by the conclusions made by the authors of the article and expressed in an attempt to state the emerging contradictions in the legal positions of courts of various instances on the protection of the rights of participants in shared construction in the bankruptcy procedure of the developer. The article also considers certain aspects of the transition of the rights and obligations of the developer to the public law company «Fund for the Development of Territories», acting in order to protect the rights of citizens – participants in shared construction. It is emphasized that the Fund has no obligations to fulfill the obligations of the builder to collateral creditors. There is a contradictory law enforcement practice on this issue. It is concluded that it is necessary to further improve the legislative regulation of mechanisms for protecting the rights of participants in shared construction.