RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of October 31, 1995 No. 8

About some questions of application by courts of the Constitution of the Russian Federation when implementing justice

The regulations on its highest legal force enshrined in the Constitution of the Russian Federation mean that all constitutional regulations have supremacy over the laws and other regulatory legal acts.

For the purpose of uniform application of the constitutional regulations by courts when implementing justice the Plenum of the Supreme Court of the Russian Federation decides to make the following explanations:

1. According to Art. 18 of the Constitution of the Russian Federation rights and freedoms of man and citizen are directly acting. They determine sense, content and application of the laws, activities of legislative and executive power, local self-government and are provided with justice.

Considering this constitutional provision, and also provision p.1 of Art. 46 of the Constitution of the Russian Federation guaranteeing everyone the right to judicial protection of its rights and freedoms, courts shall provide proper protection of rights and freedoms of man and citizen by timely and correct hearing of cases.

2. It agrees p.1 Art. 15 of the Constitution of the Russian Federation, the Constitution has the highest legal force, direct action and is applied in all territory of the Russian Federation. In connection therewith the constitutional provision courts by hearing of cases should estimate contents of the law or other regulatory legal act regulating the legal relationship considered by court and in all necessary cases to apply the Constitution of the Russian Federation as the act of direct action.

Court, resolving case, applies directly the Constitution, in particular:

a) when the Constitutions of provision fixed by regulation, proceeding from its sense, do not require additional regulation and do not contain specifying on possibility of its application on condition of adoption of the Federal Law, governing law, freedom, obligation of man and citizen and other provisions;

b) when the Constitutional Court of the Russian Federation reveals gap in legal regulation or when the gap was formed in connection with recognition not corresponding to the Constitution of regulatory legal act or its separate provisions taking into account procedure, terms and features of execution of the solution of the Constitutional Court of the Russian Federation if they in it are specified;

In cases when the article of the Constitution of the Russian Federation is referential, courts by hearing of cases shall apply the law regulating the arisen legal relationship. Availability of the solution of the Constitutional Court of the Russian Federation on recognition of unconstitutional this or that provision of the law does not interfere with application of the law in its other part.

3. In case of uncertainty in question of whether there corresponds to the Constitution the law which is subject to application on specific case, the court appeals to the Constitutional Court of the Russian Federation with request about constitutionality of this law. Such request according to Art. 101 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation" can be made by court of any instance and in any stage of consideration of the case.

About need of the address with request to the Constitutional Court of the Russian Federation the court takes out motivated determination (resolution). The request is drawn up in writing in the form of the separate document.

In request about check of constitutionality of the specific case of the law which is subject to application by consideration the court according to requirements of Art. 37 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation" shall specify the exact name, number, acceptance date, source of publication and other data on the legal act which is subject to check, and also motives for which it came to conclusion about the direction of the specified request. Owing to Art. 38 of the called Federal constitutional Law it is necessary to attach the text of the law which is subject to check and transfer into Russian of all documents and other materials stated in other language to request.

In connection with the address to the Constitutional Court of the Russian Federation with request about check of constitutionality of the law which is subject to application proceeedings or execution of the made decision, proceeding from requirements of Art. 103 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation", stop to permission of request the Constitutional Court of the Russian Federation about what it shall be specified in the determination (resolution) of court called above.

If the defendant is held in custody, to recommend to court to discuss in each such case question of change to it measures of restraint.

4. By hearing of cases courts should consider that if the law which is subject to application or other regulatory legal act of the subject of the Russian Federation contradicts the Federal Law adopted on the questions which are under authority of the Russian Federation or under joint maintaining the Russian Federation and the subject of the Russian Federation, then, proceeding from provisions of the p. 5 of Art. 76 of the Constitution of the Russian Federation, the court shall make the decision according to the Federal Law.

If there are contradictions between the regulatory legal act of the subject of the Russian Federation adopted on the questions relating to maintaining the subject of the Russian Federation and the Federal Law, then owing to the p. 6 of Art. 76 of the Constitution of the Russian Federation the regulatory legal act of the subject of the Russian Federation is subject to application.

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