Recognition of legal norms as unconstitutional as a form of overcoming legal uncertainty

Burtseva Svetlana Sergeevna Assistant; Law School of the Far Eastern Federal University Postgraduate student; Faculty of Law of the Omsk State University named after F.M. Dostoevsky 690922, Russia, Vladivostok, Ajax str., 10 burtceva.ss@dvfu.ru

Recognition of legal norms as unconstitutional is a type of constitutional judicial specific control ^{[1, p. 770],[2, p. 3]} aimed at ensuring the supremacy of the Constitution of the Russian Federation. The need to apply this method of resolving cases within the framework of constitutional justice is due, among other things, to overcome uncertainty in the existing legal regulation. As S. V. Narutto notes, "perceiving the gap as an omission of the legislator, a lack of a product of his activity – the law, its flaw, the Constitutional Court of the Russian Federation from the beginning of its activity began to recognize unconstitutional norms that do not meet the criterion of legal certainty" ^{[3, p. 46]}.

In addition, according to N. S. Bondar, "legal certainty is - and there is no exaggeration in this - an important condition for the constitutionality of normative legal acts, which follows from the very nature of legal norms, which implicitly and clearly, definitely should include an equal scale, an equal measure of freedom for all subjects of law. On the contrary, the ambiguity of legal norms is a denial of the fundamental criteria of their constitutionality: it inevitably leads to arbitrariness in law enforcement and to a violation of the equality of all before the law and the court" ^{[4, p. 5]}.

Similarly, the Constitutional Court of the Russian Federation in many of its decisions emphasizes that a violation of the requirement of certainty of a legal norm may well be enough to declare it inconsistent with the Constitution of the Russian Federation (for example, Resolutions No. 34-P of 06/22/2023, No. 4-P of 02/01/2022, No. 42-P of 10/16/2020^[1], etc.). Some scientists even point out that the recognition of legal norms as unconstitutional is the predominant activity of the Constitutional Court of the Russian Federation ^[5].

However, it is difficult to fully agree with the last statement. In particular, Chairman of the Constitutional Court of the Russian Federation V. D. Zorkin designates the considered form of overcoming legal uncertainty as a "powerful weapon" that must be used very carefully so as not to disrupt both the balance of relations between the Constitutional Court of the Russian Federation and the legislator, and the balance of constitutionally significant values in legal relations regulated by the contested norm ^{[6, p. 19]}.

In order to refute the claim that the recognition of legal norms as unconstitutional is the predominant activity of the Constitutional Court of the Russian Federation, we also consider it necessary to provide statistics showing the ratio of decisions issued by the constitutional control body on recognition as appropriate (not appropriate). The Basic Law of the Russian Federation. Thus, in 2021, the Constitutional Court of the Russian Federation issued 55 rulings, of which 29 issued a final decision recognizing legal norms as constitutional in the interpretation given by the Constitutional Court of the Russian Federation, 18 issued a final decision recognizing legal norms as inconsistent with the Constitution of the Russian Federation, as well as 8 rulings containing both options. In 2022, 59 resolutions were issued, of which 32 were on compliance with the legal norms of the Constitution of the Russian Federation, 24 on non–compliance, as well as 3 resolutions containing both options. In 2023, 60 resolutions were adopted, 33 of them on recognizing legal norms as conforming to the Constitution of the Russian Federation, 20 on non–compliance, as well as 7 resolutions containing both versions^[2].

The presence of rulings declaring legal norms unconstitutional in a smaller number compared to rulings that recognized legal norms as constitutional in the interpretation given by the Constitutional Court of the Russian Federation once again emphasizes that the considered jurisdictional method of overcoming legal defects is the most radical ^{[7, p. 94]} and is applied by the Constitutional Court of the Russian Federation only if there is no there is no other way to resolve the current legal problem. In some cases, the constitutional control body even recognizes the norm of the relevant Constitution of the Russian Federation in its interpretation, avoiding its invalidation, but further prescribes to the subject of law-making the need to amend the contested legal act in order to clarify the legal regulation of the relevant relations. An example of this is Resolution No. 32-P of 26.06.2020, in which the Constitutional Court of the Russian Federation, although it concluded that Parts 3 and 5 of Article 79 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", Part 1 of Article 439 of the CPC of the Russian Federation and paragraph 4 of Part 1 of Article 43 of the Federal Law "On Enforcement Proceedings" does not contradict the Constitution of the Russian Federation, but obliged the federal legislator to make the necessary changes to the legal regulation resulting from this resolution.

The "radical" application of the considered method is expressed in the consequences that arise in connection with the recognition of legal norms as unconstitutional. For example, the following consequences of making such decisions can be deduced from Resolution No. 30-P dated 06/26/2020:

- unconstitutional legal norms (or legal acts in their entirety) become invalid, that is, the legal force of such decisions is higher than that of federal laws ^{[8, p. 89]};

- these decisions have the same scope in time, space and in the circle of people as the decisions of the rule-making body. As noted by researchers, such decisions of the Constitutional Court fully fall even under the formal definition of a normative legal act ^{[9, pp. 13, 20]};

- the binding meaning of decisions;

- direct action, which means that the repeal of legal norms or legal acts recognized as unconstitutional by the body that adopted them is not required. The possibility of implementing such norms is blocked in the future from the date of entry into force of the decision of the Constitutional Court of the Russian Federation ^{[10, p. 31]};

- the finality of the decision, the impossibility of its review by other bodies or overcoming by re-adopting an unconstitutional legal provision.

Thus, the elimination of legal uncertainty by recognizing legal norms that do not comply with the Basic Law of the country is allowed only in exceptional cases in order to minimize the possible legal consequences of making such decisions, as well as taking into account the competence of the legislator, which the Constitutional Court of the Russian Federation has no right to intrude. The analysis of constitutional and legal practice allows us to identify three groups of situations in which the use of the considered method becomes inevitable.:

- the existence of mutually exclusive interpretations of the same norm that are not devoid of reasonable legal justification (for example, resolutions of the Constitutional Court of the Russian Federation dated 06/22/2023 No. 34-P, dated 30.03.2018 No. 14-P). The need to resolve such a conflict of interpretation at the legislative level is caused by the importance of observing the generally valid principles of legal equality and fairness so that the rights and legitimate interests of individuals are not violated, which can be achieved only if there are clearly formulated legal norms.;

- in judicial practice, it is allowed to give certain legal provisions a normative legal meaning, entailing a violation of constitutional rights realized on their basis (for example, resolutions of the Constitutional Court of the Russian Federation dated 11.07.2017 No. 20-P, dated 08.11.2016 No. 22-P). At the same time, it should be noted that the recognition of legal norms that do not comply with the Constitution of the Russian Federation in such cases is carried out only when no single version of the interpretation established in judicial practice is correct from the point of view of its constitutionality.;

- it is impossible to determine the will of the legislator in the formation of legal regulation. For example, in one of the cases, the Constitutional Court of the Russian Federation, having found a gap in legal regulation regarding the lack of a mechanism for reimbursing organizations for lost income from the provision of airport and ground support services for aircraft flights, concluded that such uncertainty could not be eliminated through a constitutional interpretation of the contested provisions due to the inability to identify the will of the legislator and The Government of the Russian Federation on the issue of the method of reimbursement of such expenses when the limits of budgetary obligations are exhausted and the authorized state body refuses to subsidize for this reason (Resolution No. 32-P of 07/16/2018).

So, how does the constitutional control body contribute to achieving certainty by recognizing legal norms that do not comply with the Constitution of the Russian Federation?

Unfortunately, it cannot be stated that this issue has been fully studied in law. In particular, V. D. Zorkin noted various ways to avoid legislative gaps, among which is the recognition of legal norms as unconstitutional, applied in situations where the gap in legislative regulation cannot be filled by direct application of the provisions of the Constitution of the Russian Federation or the constitutional interpretation of the contested legal provisions ^{[6, pp. 368-372]}. The monograph provides a number of examples of such situations with references to the rulings of the Constitutional Court of the Russian Federation, however, the approaches of the constitutional control body to the application of this form of overcoming legal uncertainty are not disclosed.

In his dissertation, I. P. Kozhokar made a brief categorical conclusion about the situation regarding the elimination of technical and legal defects by the Constitutional Court of the Russian Federation: "The Constitutional Court of the Russian Federation either recognizes normative acts or their individual provisions as unconstitutional and thereby eliminates the normative defect without additional recourse to the legislator, or gives mandatory instructions to the legislator to eliminate the relevant normative a defect" ^{[11, p. 331]}.

At the same time, we see some contradiction in this statement with the current legislation and established law enforcement practice. Thus, Article 80 of Federal Constitutional Law No. 1-FKZ dated 07/21/1994 "On the Constitutional Court of the Russian Federation" prescribes a number of actions to eliminate gaps and contradictions in legal regulation, which must be carried out by authorities if a decision of the constitutional control body finds a normative act inconsistent with the Constitution of the Russian Federation in whole or in part, therefore recognizing It is unacceptable to consider normative acts or their individual provisions unconstitutional without contacting the legislator.

Moreover, the Constitutional Court of the Russian Federation does not limit itself to addressing mandatory instructions for the elimination of defects in legal regulation. Of course, it is the most frequent case of the development of events. Moreover, the way in which such a prescription is expressed also differs: for example, in the case of checking the constitutionality of the provisions of Articles 82 and 240 of the Criminal Procedure Code of the Russian Federation and a number of other articles in connection with the complaint of citizen V. G. Skotnikov, the Constitutional Court of the Russian Federation clearly indicated what exactly needs to be specified by the federal legislator - the order and terms of storage of objects (samples) which are material evidence in two or more criminal cases (Resolution No. 33-P of 06/19/2023). And in the case on checking the constitutionality of the provision of parts 1.3-3 of Article 32.2 of the Code of Administrative Offences of the Russian Federation, it is indicated only that it is mandatory to make the necessary changes to the legal regulation without appropriate specification (Resolution No. 39-P of 07/18/2024).

At the same time, the latest case is also interesting in that the Constitutional Court of the Russian Federation, in order to achieve legal certainty, which, as it noted, is "of particular importance in the field of administrative and tort regulation," also expressed recommendations to the legislator on what related changes should be considered in connection with the recognition of Part 1.3-3 of Article 32.2 of the Code of Administrative Offences of the Russian Federation is unconstitutional. Similarly, the Court may provide more detailed "hints" regarding the content of future legal regulation in order to avoid possible uncertain situations in the future. For example, in Resolution No. 23 dated 05/16/2023-The Court pointed out that "the federal legislator is not deprived of the opportunity to establish appropriate regulation for cases of sale at public auction of a share in ownership of other property (other than immovable), to provide for other features of the exercise by a co-owner of property interested in increasing his share in ownership of this property, the right to purchase a share before such auctions ..."although this issue was not directly the subject of consideration in the present case. We consider this approach of the Constitutional Court of the Russian Federation to be correct, since it meets the criteria of legal certainty, including the need to ensure accurate and consistent legal regulation, as well as to guarantee the predictability of legal regulation and the predictability of the legal consequences of a particular behavior.

Also, in some rulings, the Constitutional Court of the Russian Federation not only disqualifies a defective legal norm and prescribes to the legislator the need to amend the current legal regulation, but also provides for measures to implement this resolution in relation to persons who find themselves in similar situations. In Resolution No. 34 dated 07/09/2020-The Court, recognizing the complaint of the Murmansk city administration of part two of Article 313 of the Criminal Procedure Code of the Russian Federation as inconsistent with the Constitution of the Russian Federation, took into account, among other things, the possible presence of local governments of other municipalities in similar situations with the applicant and established their right to seek reimbursement for expenses incurred as a result of their measures to protect the residential premises in accordance with the criminal procedure legislation.

This approach of the Constitutional Court of the Russian Federation is seen as positive, bringing certainty to the legal status of persons in such legal relations, and meeting the constitutional principle of equality of all before the law and the court. However, unfortunately, its use is not always carried out by the Court. For example, it would be possible to apply a similar approach in the case of calculating utilities for a communal metering device and at the same time individual metering devices in the premises of the house (resolution No. 30-P dated 07/10/2018) to recalculate the time period from the date of publication of the resolution; in the case of determining the minimum terms for concluding employment contracts with teaching staff, related to the teaching staff (Resolution No. 32-P dated 07/15/2022), in order to extend them with other persons in similar situations with the applicant, etc.

Meanwhile, in the practice of constitutional justice, there are also cases in which the Constitutional Court of the Russian Federation refrained in principle from recognizing legal norms as unconstitutional, since, as noted by Ya.K. Chepenko, the elimination of such defects requires systemic legal regulation, and the disqualification of norms could cause more harm to constitutional values than maintaining their validity for a certain period. ^{[8, p. 94]}. We have found three such resolutions on the Court's website for the entire time of its existence: No. 12-P dated 07/20/1999, No. 2-P dated 02/05/2007, and No. 29-P dated 12/20/2011. For example, in the latest decision for the Constitutional Court of the Russian Federation, the scales outweighed in favor of the stability of legal relations in the interests of their participants, which led him to refrain from recognizing the contested norm as unconstitutional.

In this case, on the one hand, stability as an element of the idea of legal certainty prevailed over the disqualification of the legal provision, since the recognition of such a norm as invalid would create a "naked" legal regulation for a while. On the other hand, such a situation is absurd, since, as L. A. Terekhova states, actually unconstitutional norms are recognized as corresponding to the Constitution of the Russian Federation ^{[12, pp. 59-60]}. Fortunately, the adoption of such rulings stopped after 2011, but in the current period of the Court's activity, the possibility of maintaining the operation of legal norms recognized as unconstitutional is not excluded until appropriate changes are made to the legislation.

For example, guided by the principle of constitutional restraint, the constitutional control body, in its resolution No. 17-P dated 04/25/2018, indicated that until the federal legislator introduces changes to the legal regulation arising from this resolution, the current procedure for applying paragraph 2 of the notes to Article 264 of the Criminal Code of the Russian Federation, recognized by this resolution as inconsistent with the Basic Law, remains in force. And the following paragraph of the operative part is of even greater interest: "If, before the deadline set by this Resolution, the federal legislator does not make the necessary changes to the legal regulation resulting from this Resolution, paragraph 2 of the notes to Article 264 of the Criminal Code of the Russian Federation becomes invalid." Although the legislator made the appropriate changes within the prescribed period, however, the very fact that the constitutional control body allowed the possibility of intentionally creating a gap in the definition of the concept of "a person in a state of intoxication" raises a number of questions from the point of view of compliance with legal certainty. It is difficult to imagine how the further application of Article 264 of the Criminal Code of the Russian Federation could develop in practice, and how ambiguously court cases could be resolved.

Returning to the possibility of maintaining the current legal regulation, which is recognized as inconsistent with the Constitution of the Russian Federation, before making appropriate changes to the legislation, it is also necessary to address the issue of enforcement of decisions recognizing unconstitutional legal provisions. Thus, according to part 5 of Article 79 of the Federal Constitutional Law of 07/21/1994 No. 1-FKZ "On the Constitutional Court of the Russian Federation", from the moment of entry into force of the decree declaring the normative act or its individual provisions unconstitutional, their application or implementation in any way, including their application by the courts, is prohibited. At the same time, contrary to this provision, the Constitutional Court of the Russian Federation points out that until appropriate changes are made, the effect of the provision recognized as unconstitutional remains. This contradictory situation may negatively affect (or affect) the implementation of such decisions and, consequently, the achievement of legal certainty in specific situations.

Of particular interest in the aspect of the above is the problem of the implementation of judgments issued in connection with requests from judicial authorities to verify legal norms for compliance with the Basic Law. For example, in connection with the request of the Industrial District Court of Smolensk, Resolution No. 9-P was issued on 02/19/2018, according to which the existing pension provision procedure for those who became disabled during the exercise of their powers due to reasons unrelated to their official activities was declared unconstitutional. At the same time, the Constitutional Court of the Russian Federation ordered that the current procedure be applied until the federal legislator executes this resolution. Here it is impossible not to agree with the dissenting opinion of N. S. Bondar, attached to this decision, according to which there is no clarity on the procedure for restoring the violated rights of a citizen by a court of general jurisdiction in such an outcome, since there are no legal grounds to "freeze" the consideration of the case until appropriate changes are made to the legislation, and then, in fact, on the basis of According to the regulations of the Constitutional Court of the Russian Federation, the very procedure that is recognized as unconstitutional must be applied. To some extent, this situation seems to be devoid of any meaning in relation to an individual case being considered by the court that initiated the request. It is unclear how, in this case, the rights of the person involved in the case that led to the request to the Constitutional Court of the Russian Federation should be restored.

From all of the above, the following conclusion can be drawn. In the case of recognition of legal norms that do not comply with the Constitution of the Russian Federation, the constitutional control body is not limited to just such an indication. Taking into account the established constitutionally significant values and fundamental legal principles, including the principles of legal certainty, the need to maintain the trust of individuals in the law, taking into account the consistency and complexity of legal regulation, the Constitutional Court of the Russian Federation provides for the procedure for the execution of rulings on the recognition of legal norms unconstitutional: specifies how similar legal situations should be resolved before making appropriate changes It makes recommendations to lawmakers both on the issue of making changes to the contested provision and possible related changes to other legal norms, and provides for the procedure for implementing the resolution in respect of other persons who are not the applicants in the case. At the same time, some approaches to resolving cases by the Constitutional Court of the Russian Federation (such as refraining from recognizing a legal norm as unconstitutional, maintaining unconstitutional legal regulation until legislative changes are made) raise questions from the point of view of the contradictions they contain.

^[1] Hereafter, the legal acts of the Constitutional Court of the Russian Federation are listed on the official website of the Constitutional Court of the Russian Federation (https://ksrf.ru/ru/Decision/Pages/default.aspx ).

^[2] The calculation was carried out on the official website of the Constitutional Court of the Russian Federation. URL: https://ksrf.ru/ru (date of request: 07/01/2024).