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Alexander Pevzner, collector, Germany, Monday, 11/22/2010 15:58

 
Alexander Pevzner, collector, Germany: On the constitutionality of the amendments to the Law on the Constitutional Court and what they turn out for the citizens?
22.11.2010|15:58
November 10 issued the Law on Amendments to the Federal Constitutional Law "On Constitutional Court of the Russian Federation." Change dramatically in a negative direction will affect the hundreds of thousands (if not millions) of citizens who will turn the fate of one on one with the imperfection of domestic legislation. I emphasize: this is precisely the inadequacy of the laws themselves, but not about the tragic state of the Russian judicial system, applying these laws. It concerns both civil and criminal cases, but I want to stay specifically only to the criminal.

As is known, until now a citizen, which attract criminal liability, had the opportunity, without waiting for the criminal trial, immediately file a complaint with the Constitutional Court (CC), if the law that applied to him or consequence should be applied to him by the court, violated, according to the citizen his rights and freedoms guaranteed by the Constitution of the Russian Federation. I emphasize: not important, or just applying the law will still apply - the citizen had the right in both cases refer to the Constitutional Court with a complaint against the law. Also, courts dealing with citizens, were required to apply to the Constitutional Court requesting to examine the constitutionality of laws - as has already applied and to be applied, if they came to the conclusion that the law is unconstitutional. It is clear that the courts are addressed in the COP are significantly less likely than citizens. If the COP acknowledged the law is unconstitutional, it had the most positive consequences not only for the applicant, but for all citizens, caught in a similar situation - a criminal case the complainant was revised in the light of decisions of the COP, and the rest of the citizens of the law also could not be applied.

In recent years, citizens' appeals to the Constitutional Court have gained popularity because the criminal and criminal procedural legislation of the Russian Federation, to put it mildly, have long come to the throat of the Constitution. Treatment in the Constitutional Court became for many the last hope for justice in disputes with the state.

Everyone knows that the laws are far from perfect. However, most readers are unlikely to recognize the scale of the problem. I will cite some examples from the field of law, with which I unfortunately had to face personally. We are talking about the smuggling of cultural values and laws related to this problem.

Question: Is it possible under the law (and I emphasize - it is the law) to sit behind bars for smuggling of cultural property as a gas mask 50's or miner's lamp of the same time? Answer: Yes, the law requires - let criminals from 3 to 7 years imprisonment. And what will happen in the Book of tasty and healthy food "in 1958 edition? - Of course, from 3 to 7. A fossil skeleton of a perch, imported legally as a souvenir from the Portuguese and then smuggled back, but with a broken tail? The expert lamented: this cultural value would cost $ 400 with a tail and no tail - only 200. For perch laid again from 3 to 7 (thank you, that is not sewn the deliberate destruction of cultural property - Art. 243 of the Criminal Code).

And if you try to take out the Russian collection of 32 coins and banknotes of foreign origin with a makeweight in the form of a German Iron Cross 2 class worth 4,911 rubles, or to 153 rubles. 40 kop. a piece of cultural values? Have guessed? - 3 to 7. Me as a collector interested in it for such cultural treasures to 153 rubles. 40 kopecks. "

And if when you move from Kyrgyzstan to their historical homeland Russia put in a container with pots and other belongings of her grandmother icon estimate of 5.000 rubles., Then in front of hapless migrant Homeland immediately disclose friendly gates of the prison (of course, for a period of 3 to 7).

And now the question: what would happen if smuggled import to Russia, for example, an atomic bomb or a tank of nerve gas that could destroy the population of the city - have already guessed? - 3 to 7!

Another question: why the illegal import of cultural property in Russia is as socially dangerous as illicit exports (both cases according to the law are subject to the same severe criminal charges)? After all, when exporting nations of Russia permanently lose part of their cultural heritage, while the smuggling in the worst case we can talk about unpaid customs duties. Than the latter, strictly speaking, is more dangerous than the illegal importation of refrigerators, especially if the person, for example, did not conceal the goods from customs, and lowered only in the declaration of the value of imported cultural values?

Reference: The case of smuggling of ordinary goods, rather than cultural values and atomic bombs, it is punishable by a fine or imprisonment up to 5 years. In this case, criminal liability arises if the value of smuggled goods exceeds 1.5 mln. If it is below 1.5 million rubles, it is an administrative offense and is punishable only financially. I wonder how this situation is combined, according to the legislator, with imprisonment for a term of 3 to 7 years for smuggling in Russia will cost £ 5.000.?

Another question: is it possible under the law to declare customs with false information about the events that take place in the future, and on this basis to sit down for contraband? Any sensible person understands that false information about the future can not be in principle - with the exception of pre-election promises of politicians. However, the law says: you can!

Is it possible to claim from the owner's payment of customs duties for imported temporarily into the territory of Russia and therefore not subject to customs payments of the car if the car after the import in Russia was hijacked by the owner, and thus has always remained on Russian territory? It was, until recently, it is possible, but thanks to the COP and the complaint of Mr. Grunwald - now, thank God, we can not!

The fact that the Duma is not a place for discussion, is well known, but the fact that the legislator actually resides in a coma, for me personally was a revelation. According to my observations, the lawmaking body of this only increases the legislative chaos, even in those cases where the basis of the law is a reasonable idea.

We return to our main question of the adopted amendments to the Law on the Constitutional Court, which will come into force after 3 months.

Now the citizen will be denied the right to appeal to the Constitutional Court as long as the criminal law is applied to it and have his case is finalized in court, ie, until he is convicted.

Preliminary investigation we can go, as you know, for years, with all its charms in the form of the detention facility, spiced with tuberculosis, seizure of property as evidence, etc.

Courts also blocked the air. Now the judge will be able to apply to the Constitutional Court only when it fell into his hands, but the decision on the case he has not yet ruled. In particular, if we judge someone already condemned, and then realized that the article is somehow unconstitutional, appeal to the Constitutional Court with a request to its constitutionality, he no longer can. Seems inhumane.

It turns out that whatever one may say, until the court held the accused, nor citizen, nor the judge have no right to appeal to the Constitutional Court. Thus, a citizen of compressed unconstitutional law, and nothing can be done. Who interfered with the old order and why it changed?

In addition, the amendments violate the Constitution. Article 125 of the Constitution in black and white as the judge, and citizens can address the Constitutional Court on the constitutionality of the law applied or subject to application.

I think comments about the adoption of amendments to the Law on the Constitutional Court are unnecessary: Article 125 of the Constitution of the legislator sent to landfill.

Ekho Moskvy