Русский
EnglishCite this article as:
Podmarev A. А. Proportionality as a constitutional principle of limiting human and civil rights and freedoms in the Russian Federation. Izv. Saratov Univ., Economics. Management. Law, 2021, vol. 21, iss. 1, pp. 83-91. DOI: https://doi.org/10.18500/1994-2540-2021-21-1-83-91
Proportionality as a constitutional principle of limiting human and civil rights and freedoms in the Russian Federation
Introduction. The 1993 Constitution of the Russian Federation allows for the possibility of restricting rights and freedoms of individuals and establishes imperative conditions (principles) for the introduction and operation of these restrictions. One of these constitutional principles is the principle of proportionality: the rights and freedoms of a person and a citizen can be limited only to the extent necessary to achieve the goals specified in part 3 of Article 55. Theoretical analysis. The principle of proportionality of restrictions to certain goals is currently declared by the constitutions of many states, and is also part of the international legal criteria for restrictions on human rights. Some conceptual issues of the content of the constitutional principle of proportionality are resolved by the Constitutional Court of Russia. In its most general form, the principle of proportionality means that: the measures (means) used to restrict rights and freedoms must be conditioned by constitutional goals; restrictive measures (means) should not be greater than necessary; restrictive measures (means) should not lead to disproportionate, excessive restrictions. Empirical analysis. The analysis of the decisions of the Constitutional Court of Russia shows that in each specific case, the Court determines the necessary measure to restrict a particular right (freedom), comparing, weighing the constitutionally recognized values (on the one hand, the rights of a certain person, on the other, the rights of other persons, the interests of the state, public interests), as well as assessing the adequacy of the legal means used to achieve any constitutionally established goal (s) of restriction. The conclusions reached by the Court regarding the proportionality or disproportion (excess) of the restriction of this or that right are binding not only for the legislator, but also in some cases for the law enforcement officer. Results. It is concluded that the implementation of the constitutional principle of proportionality of restrictions in lawmaking and law enforcement means that when establishing and applying restrictions on rights and freedoms to achieve a certain constitutional goal (goals), exclusively necessary measures (means) must be provided and used in this situation. The principle of proportionality of restrictions is one of the criteria for assessing the constitutionality of the restriction of any right or freedom, as well as one of the guarantees against arbitrary (unreasonable, excessive, unconstitutional) restrictions, since it presupposes the existence of certain boundaries (limits, frameworks, conditions) of lawmaking and law enforcement.
- The Constitution of the Russian Federation (adopted by the popular vote of 12.12.1993) (amended by Federal Constitutional Law 6-FKZ of 30.12.2008, Federal Constitutional Law 7-FKZ of 30.12.2008, Federal Constitutional Law 2-FKZ of 05.02.2014, Federal Constitutional Law 11-FKZ of 21.07.2014). Sobranie zakonodatel’stva RF [Collection of Laws of the Russian Federation], 2014, no. 31, art. 4398 (in Russian).
- In the case of checking the constitutionality of certain provisions of Articles 1 and 5 of the Federal Law of February 5, 1997 “On the tariffs of insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the State Employment Fund of the Russian Federation and to the Compulsory Medical Insurance Funds for 1997” with complaints from a number of citizens and inquiries from courts. Resolution of the Constitutional Court of the Russian Federation no. 7-P of 24.02.1998. Sobranie zakonodatel’stva RF [Collection of Laws of the Russian Federation], 1998, no. 10, art. 1242 (in Russian).
- In the case of the constitutionality of certain provisions of the first part of Article 92 of the Constitution of the Republic of Bashkortostan, the first part of Article 3 of the Law of the Republic of Bashkortostan “On the President of the Republic of Bashkortostan” (as amended on August 28, 1997) and articles 1 and 7 of the Law of the Republic of Bashkortostan “On the Election of the President of the Republic Bashkortostan”. Resolution of the Constitutional Court of the Russian Federation no. 12-P of 27.04.1998. Sobranie zakonodatel’stva RF [Collection of Laws of the Russian Federation], 1998, no. 18, art. 2063 (in Russian).
- In the case of checking the constitutionality of the provisions of Article 82 of the Criminal Procedure Code of the Russian Federation in connection with the complaint of citizen V. V. Kostyleva. Resolution of the Constitutional Court of the Russian Federation no. 9-P of 16.07.2008. Sobranie zakonodatel’stva RF [Collection of Laws of the Russian Federation], 2008, no. 30 (2), art. 3695 (in Russian).
- Gadzhiev G. A. On the principle of proportionality and constitutional cassation. Sud’ya [Judge], 2019, no. 7, pp. 56–64 (in Russian).
- On the application of the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950 and the Protocols thereto by the courts of general jurisdiction. Resolution of the Plenum of the Supreme Court of the Russian Federation no. 21 of 27.06.2013. Byulleten’ Verkhovnogo Suda RF [Bulletin of the Supreme Court of the Russian Federation], 2013, no. 8 (in Russian).
- Konstitutsiya v XXI veke: sravnitel’no-pravovoye issledovaniye. Otv. red. V. E. Chirkin [V. E. Chirkin (ans.ed.) Constitution in the XXI Century: Comparative Legal Research]. Moscow, Norma, INFRA-M Publ., 2011. 656 p. (in Russian).
- Zorkin V. D. Rossiya i Konstitutsiya v XXI veke. Vzglyad s Il’inki [Russia and the Constitution in the XXI Сentury. View from Ilyinka]. Moscow, Norma Publ., 2007. 400 p. (in Russian).
- Ozhegov S. I., Shvedova N. Yu. Tolkovyi slovar’ russkogo yazyka: 80 000 slov i frazeologicheskikh vyrazheniy [Explanatory Dictionary of the Russian Language: 80,000 Words and Phraseological Expressions. 4th ed., rev.]. Moscow, A TEMP Publ., 2006. 944 p. (in Russian).
