Vladimir Grigoriev: "Government has a duty to guarantee the rights and freedoms of citizens"

Vladimir Grigoriev, President of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika

TIRASPOL (Tiraspol Times) - "We receive many complaints on infringement of the right to property and the right of free enterprise activity," says the President of PMR's Constitutional Court in this interview, explaining that the Court sees itself as safeguarding private property and the freedom of contract in an open market economy.

This year, Pridnestrovie turns 17 years old since it declared independence on 2 September 1990.

Its current Constitution - the second in the unrecognized country's lifetime - turns 12 years old on 24 December.

And on 12 June 2007, the Constitutional Court turned 5 years old. This is the Court which was established in 2002 to protect the safeguards enshrined in the Constitution and provide interpretation of it.

In this interview, the President of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika, top judge Vladimir Anatolievich Grigoriev, explains the role of the PMR constitution in the life of his young, very real, but unrecognized country.

A Constitution is the integral attribute practically of each state, and a symbol of the nation. How does the PMR Constitution influence the development of Pridnestrovian society and the state as a whole?

" - The Constitution is the primary necessity for the state formed on the basis of supremacy of the law. In our case, the Constitution of the Pridnestrovskaia Moldavskaia Respublika in the legal form establishes the fundamental principles of the structure of the society and the state. This document pawns legal fundamentals on management of all public processes and gives the reference points of legal regulation in all spheres of public relations.

In order to make Constitution working it shall be legitimate. Constitution is considered legitimate when it is adopted in the lawful way. Our Constitution is surely legitimate as it has been adopted at the national referendum which expressed the will of the multinational Pridnestrovian people.

The Constitution of the Pridnestrovskaia Moldavskaia Respublika has fixed such fundamental values, as democracy, priority of rights and freedoms of the person. It has outlined public relations with the frameworks of the constitutional safety. As long we are in these frameworks, our state shall have prospects of successful harmonious development. The process of development of the free civil society based on the constitutional principles of a market economy, the democratic character of our political system, equality before the law, and observance of human rights ... all these things are constantly developing in our Republic, so we should know and respect the Fundamental Law of our Republic."

How does PMR's Constitution correspond with the norms of international law? Are there any contradictions?

" - First of all, I would like to note, that there are no special contradictions between the Constitution of the Pridnestrovskaia Moldavskaia Respublika and the international law. Eleven years ago, when our Constitution was written, the conventional principles and norms of the international law were the major reference points. And we based on the international norms and on the developed international-legal practice. Actually all norms of our Constitution almost completely coincide with the international pacts on human rights.

Besides our Constitution with its fundamental values recognizes, that the conventional principles and norms of international law shall be the integral part of the legal system of the Pridnestrovskaia Moldavskaia Respublika. Therefore, the Constitutional Court, making decisions, bases not only on the Constitution, but refers to the international law. Though frankly speaking all these references have optional character."

Over the last 11 years, parts of the Constitution were updated. Is this impossible to avoid?

" - As a judge of the Constitutional Court, and not being a politician, I shall answer your question strictly from a legal point of view. Our Constitution contains the norms determining the order of entry of the constitutional changes. Hence, they can exist. Whether these changes are necessary - this question does not refer to the Constitutional Court, but it does refer to the politicians at power. But at the same time they should estimate all legal factors, among which the first place should occupy the factor of stability of the Constitution. It is impossible to change Constitution for the sake of a momentary political conjuncture.

During the 11 years the Constitution of our state was entered with changes in 1998, 2000 and 2005. Thus, the initial wording of the Constitution has already updated practically on 60%. And for comparison the Constitution of the Russian Federation which was adopted in 1993, was not entered with any change.

In my opinion, decision of many disputable questions can be found within the limits of the working Fundamental Law, using its internal potential and not subjecting the wording with changes with frequency, characteristic for usual laws. And modification in the Constitution is admissible solely when there appears public expediency. We should remember, that change of the Fundamental Law should not be reasoned by subjective desires and interests of separate politicians. According to the ancient philosopher Plato: "The state in which the law is not valid or is under someone's authority is so near its destruction". Changes in the Constitution should be will of the majority of the citizens."

In your opinion, are there any blanks or items lacking in our Constitution which should be changed?

" - First of all, I would like to note, that each person has the right to consider, that there are lacks in it and can criticize it. Personally I do not seeany lacks in our Constitution. On the contrary, I would like the current Constitution to be unchangeable as long as possible, because force of the Constitution is in its stability.

As for blanks they are inevitable. Our Constitution is long enough - it has 106 Articles, not including transitive norms and regulations. And to overcome blanks, there exists a number of alternative ways. It, for example, is interpretation of the Constitution and its constitutional laws, which is studies by the Constitutional Court, global updating of the current legislation, creation of effective organizational structures and new forms of control. The whole constitutionally legal legislation develops constitutional regulations which have not been covered directly in the Constitution. Thus, I believe, lacks in regulating of constitutionally legal relations is corrected."

Can the Constitutional Court oppose modifications of the Constitution if, for example, they contradict fundamentals of the constitutional system?

" - Our Constitution does not provide such opportunity. But for the purpose of maintenance of the legal protection of the fundamentals of the constitutional system it is worthy to address to the experience of Ukraine where the order of modification in the Constitution provides obligatory decision of the Constitutional Court as the organ of the constitutional control, about conformity of amendments to the fundamentals of the constitutional system of the states, to the rights and freedoms of a person and a citizen. Such order confirms that legislation should be the voice of reason, and the Judge should be the voice of the law.

Besides for the purpose of maintenance of true democracy, conformity of the constitutional amendments to bases of the constitutional system and to the norms of international law, in my opinion, projects of the corresponding laws should be developed by the competent constitutional commissions created on equal footing by the three branches of power. Projects of these laws should be nationally discussed in cities and districts of our country, in mass media, in labour collectives, public associations and organizations. Only in this way we can provide true democracy in our country."

Since the Judges of the Constitutional Court are on the Constitution, are you allowed to give advice outside the court?

" - If to speak about choice of the form, any processes, not concerning verification of statutory acts judges can express their opinions. Not as judges, but as experts of the constitutional law. Some of our Judges work as educators at higher educational institutions, publish scientific and practical articles about constitutionalism. So until a statutory act is not passed and no legislative process is developing, in my opinion. A judge can express his opinion on various models, but only within legal limits not mentioning powers of the Constitutional Court."

According to the constitutional norms, the President of the Pridnestrovskaia Moldavskaia Respublika shall be both the guarantor of the Constitution, and rights and freedoms of a person and a citizen. What real opportunities, in your opinion, has the President for this purpose?

" - As the guarantor of the Constitution the President has levers of influence on all the organs of the government: on the legislative process whose participant he is; on the executive power which he heads; on judicial power from organizational point of view, that is his participation in appointment of judges and, certainly, as the guarantor of independence of judicial power. Hence, on the whole, the President shall influence protection of rights and freedoms of the citizens.

If to answer this question more particularly the President develops bills including bills on protection of rights and freedoms of the citizens, and directs them to Parliament. It is necessary to say, that there are few bills in which rights and freedoms of a person would not be mentioned.

And the President has the right of the veto. And when the President finds in bills infringement of rights of the citizens, he applies this very strong constitutional right.

We should not forget that the President as the Head of the executive power shall supervise ombudsmen departments: the Ministry of Internal Affairs, the Ministry of State Security and other organs, called to provide legality, social order, protection of rights and freedoms of the citizens of our state.

And, certainly, the President as the guarantor of the Constitution, and of rights and freedoms of the citizens, shall be the subject of application to the Constitutional Court."

And who else guarantees observance of the constitutional rights and freedoms of the citizens of Pridnestrovie?

" - Norms of our Constitution stipulate the duty of the state and its organs to provide real action of legal guarantees of a person. The general constitutional principle in the given case is the regulation that "recognition, observance and protection of rights and freedoms of a person and a citizen shall be the duty of the state ". Thus, the duty to guarantee observance of rights and freedoms of the citizens extends not only on the President, but on all the organs of the government, on the three branches of power - legislative, executive and judicial. The same duty is allocated on the organs of local self-management."

Can the Constitutional Court as the organ of the government protect truly rights and freedoms of a citizen?

" - First of all, it is necessary to note, that the Constitutional Court does not judge a separate person, it judges laws. And laws are written for thousands of people.

Thus, when we admit, the law or its separate regulations unconstitutional from the point of view of infringement of the rights and freedoms of a person, we do not protect a person, but thousands of people.

And to be more concrete, when we admit an act or its separate regulations unconstitutional, we order courts to reconsider the case of the citizen in direction specified in the resolution of the Constitutional Court."

How frequent are constitutional complaints by ordinary citizens? And what do the cover?

" - Cases arising in connection with applications of the citizens, occupy a significant part in total of the cases considered by the Constitutional Court. In our republic, as against many other countries, citizens have the right to individual and collective constitutional complaint. In other words, at observance of the certain conditions fixed in the Constitution and in the constitutional law about the Constitutional Court, the person shall have an opportunity to apply in the Constitutional Court and to receive real protection of the constitutional rights.

We receive many complaints on infringement of the right to property and the right of free enterprise activity. Separate place occupy complaints on the infringement of the constitutional right to remedy. Unfortunately, at present the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences contains a number of unconstitutional regulations regarding stipulating extrajudicial order of withdraw of the citizens to administrative responsibility in the form of penalty and we have to correct them. The Constitutional Court has repeatedly stated its legal position that it shall be inadmissible to impose penalty sanctions on the citizens without court decision as it directly contradicts requirements of Article 37 of the Constitution which specifies that no one can be deprived of his property, otherwise on court decision."

Complaints of citizens who petition the Constitutional Court have a turnaround time of three months. Don't you think it is a rather long term for consideration? And what can be done to speed up justice?

" - It is impossible to slow down or accelerate specially consideration of cases in the Constitutional Court. All cases are considered during the terms stipulated by the constitutional law about the Constitutional Court, and in the order of strict sequence. We do not know another principle. The calendar of consideration of cases is made under the strict order, - no priorities should be given to anybody. The President, the Parliament, the same as the citizen are in one line and should wait for the day of consideration of application."

How independent is the court and how does this independence protect the citizens?

" - In a modern democratic, lawful state each citizen should have the real opportunity to protect his infringed rights and freedoms, guaranteed to him by the Constitution. And it is very important that the judicial power should be represented by independent courts could realize true justice in the name of the state and in the order established by the law. It is impossible to suppose the slightest opportunity of extraneous intervention in their activity and to influence the Judges. Guarantees of independence of Judges, their legal protection should be real and stable, including measures of material, social maintenance, corresponding to their high status. The higher is authority of court and justice on the whole, its independence in relations with representative and organs of power, the higher is the level of legality and democracy in the country, more reliably rights and freedoms of a person and a citizen are protected."

Would it be correct to say that the Constitutional Court is truly an independent organ or can other organs of power influence or pressure it?

" - The Constitutional Court is removed from politics. Judges of the Constitutional Court are not engaged in political activity. None of them is a member of any political party, and I can say absolutely authentically, that there are no political debates, political approaches and reasons of expediency in our work. We consider only legal criteria.

Making decisions, the Constitutional Court coordinates them with nobody. The court independently decides all questions, and it is impossible to coordinate anything. The Constitutional Court is not the Court which acts in the structure of one judge on whom it is possible to put pressure. The Constitutional Court comprises six judges elected on the parity basis by the three branches of power. They are all independent and are dependent on the Constitution only.

As for pressure... What should we mean? In our proceedings participate: the plenipotentiary of the President, the plenipotentiary of the Supreme Council (parliament), representatives of other organs of power and citizens. Each side has the right to state the legal position. Whether it is possible to name these statements as pressure upon the Constitutional Court? Hardly. The process is competitive. We hear opinion of each side. We perceive any logic and worthy argument, but it is impossible to say, that we are subjected to pressure of any side. In my opinion, it is quite enough to analyze our resolutions."

Pridnestrovie's Constitutional Court has been acting for almost five years. What influence does its activity have on formation of the constitutional order in our state?

" - The Constitutional Court has been functioning for five years, but the constitutional justice is still the new phenomenon for our state. Activities of the Constitutional Court are directly directed on establishment and strengthening of the constitutional order in the society. The Constitutional Court is the bearer and the mechanism of maintenance of the supreme constitutional values. First, the Constitutional Court shall be the guarantor of supremacy of the Constitution as the fundamental law of the state on the entire territory of the republic. Second, the priority role in activities of the court is given to protection of the constitutional rights and freedoms of the citizens irrespective of their social status and political views. And, at last, third, it is consecutive activity of the court on perfection of national legal system according to the constitutional principle of division of powers which is the fundamental state legal element.

The Constitutional Court by decisions containing legal positions not only restores constitutionality, but also actively promotes perfection of legislative base, limiting it with frameworks of constitutionally legal field. Estimating significance of activity of the Constitutional Court we should realize, that the Constitutional Court does not estimates political expediency, and reveals the constitutional legitimacy.

I have mentioned the main areas of the activities of the Constitutional Court, influencing on the development of the constitutional order in the republic."

According to our Constitution obligatory interpretation of its norms can be given only by the Constitutional Court?

" - Well, the Constitutional Court is the specific organ of the judicial authority possessing special powers on official interpretation of the Constitution and constitutional laws. Resolutions of the Constitutional Court assist in framework of the current constitutional model to eliminate separate uncertainties in understanding of the constitutional norms. Our Resolutions provide interpretation of constitutional norms."

And what Resolution of the Constitutional Court about interpretation of the Constitution, in your opinion, has caused the greatest interest?

" - In 2006 great interest and resonance has been caused by the Resolution of the Constitutional Court on the case about interpretation of separate regulations of Articles 60 and 74 of the Constitution. Having give the corresponding interpretation, the Constitutional court has precisely determined the state positions not compatible to the status of a Member of Parliament or of other representative organs in the Pridnestrovskaia Moldavskaia Respublika. The court has proved the conclusions by the ground that concentration of functions of various divisions of power in one organ, as well as overlapping of the deputy mandate with occupation of position on state service, is impossible.

In a democratic lawful state, the organization of the state is based on the principle of division of powers. This given principle provides decentralization of management which makes it more adapted to protection of interests of the population. I would like to repeat once again, that the Constitutional Court in the decisions consistently defends action of the constitutional principle of division of powers as the bases of organization and activity of the lawful state at which each branch of power shall be independent and sovereign within the limits of the powers, should not interfere the competence of other authorities. Besides the constitutional rule about inadmissibility of overlapping of the deputy mandate with the state service is caused by the ground that the deputy should be independent on influence of the state organs, establishments and their officials.

I would like to note adherence to principles of Parliament and Prosecutor's Office in their aspiration to execute the given decision of the Constitutional Court. Parliament has offered local representative organs to decide independently the problem of overlapping by deputies of their powers while holding posts in of state service. However not all deputies of local councils have unanimously understood the necessity to carry out this requirement of the Constitution, and Parliament as the higher organ has been compelled to adopt Resolution about cancelling of decisions of separate local councils regarding the statement of powers of Deputies on corresponding constituencies."

If other courts or organs of government don't execute decisions of the Constitutional Court, what enforcement mechanism does your Court have at its disposal?

" - We have such organ, it is Prosecutor's Office. And for what does it exist for? The Prosecutor's Office is obliged in case of infringement of any statutory regulation, proceeding from the decision of the Constitutional Court, to protect the person, to apply in court with the requirement to correct it. Therefore it is not necessary to create any new organ. The Prosecutor's Office is capable to act in this direction."

In your opinion, who in Pridnestrovie is responsible for the development of a shared sense of justice?

" - Development of sense of justice and of the level of constitutionally legal conscience in our society should become one of the major state tasks. Absolutely all organs of the government within the limits of their competence should draw attention of the public and, first of all, of the youth to the Fundamental Law of our state as the authority of the Constitution shall be the authority of the state. The citizens should know their rights and should apply them for self-realization and improvement of quality of life.

For the purpose of popularization of the Fundamental Law of our state, especially among the young, in 2005 the Constitutional Court prepared and issued Children's edition of the Constitution for primary children. Do You continue the work in this direction?

For the purpose of popularization of the Fundamental Law of our state, especially among the youth, the Constitutional Court under patronage of the President held on December, 21st the Student's Conference " Constitution of the Pridnestrovskaia Moldavskaia Respublika is the Fundamental Law of our state '. Students of five state-run high schools of our republic have taken part In this conference.

For the purpose of carrying out of the analysis and selection of the best reports presented by the participants of the Student's Conference, Expert Board has been formed which included representatives from the Constitutional Court, the Parliament, the Ministry of Education, the Ministry of Justice and all high schools. The authors of the best five reports have been selected.

Besides for the purpose of propagation of the Fundamental Law, popularization of the constitutional legal proceedings in our state and perfection of professional skill of the officials of the Constitutional Court, on December, 19th we have organized "the role play", modelling the constitutional process. The officials of the Constitutional Court have simulated the constitutional process which subject was conditional consideration of the application of the citizen about protection of his constitutional rights and freedoms."

What does the Constitutional Court do to get the public to care about constitutional issues?

" - For the almost five year period of its activity the Constitutional Court has issued a great number of editions devoted to our Constitution, constitutional control, rights and freedoms of a person.

On the occasion of the tenth anniversary of the Constitution the collective work of judges and officials of the Constitutional Court - "Comparatively legal analysis of the constitutions of the European states " has been published.

This year the Constitutional Court has founded the international scientific and practical magazine " Modern constitutionalism ". Its purpose is creation of information space for discussion of most urgent problems in the field of modern constitutionalism.

Scientific and practical articles of judges and officials of the Constitutional courts of scientists, jurists from different states are published in the journal, scientific and practical research in the sphere of constitutional law, domestic and foreign experience is covered in it as well.

Editorial Board comprises judges of the Constitutional Courts and scientific jurists from Bulgaria, Russia, Serbia, Ukraine and, certainly, from our state. The journal is issued twice a year in Russian, English and German languages.

On June, 1st 2006 on the eve of the fourth anniversary of activity of the Constitutional Court the first issue of the journal was published: included articles of our collegues - Judge of the Constitutional Court of the Russian Federation, Professor Bondar N.S., Chairman of the Constitutional Court of Republic of Buryatiya Budaev K.A., Chairman of the Constitutional Court of Komi Republic Gavryusov Yu.V., Chairman of the Constitutional Court of Kabardin-Balkar Republic Gelyakhov А.S. and others.

On December, 1st the second issue of the journal was published which included articles of Judges of the Constitutional Courts and such well-known scientists-jurists as: Judge of the Constitutional Court of the Russian Federation, Professor Ebzeev B.S., constitutional scientist of St.-Petersburg University of the Ministry of Internal Affairs of the Russian Federation, Assistant Professor Kuzmin A.V., Lawyer of trade union of workers of Israel Loui Zreyk and others.

The electronic version of the journal is placed on the site of the Constitutional Court. We believe, that the electronic version of the journal will provide more perfect system of academic dialogue, openness for all persons interested in discussions, availability and mobility of each participant. We hope, that our journal will occupy a worthy place in the journal periodical press covering problems of the constitutional law, and will become popular not only in our republic, but also abroad."

Why did the Constitutional Court publish Pridnestrovie's Constitution in book form in six languages?

" - The constitution was published in the six languages - Moldavian, Russian, Ukrainian, English, German and French, in harcover.

Until now, the Constitution of our state has not been published in such format. The necessity of such edition has arisen for absolutely objective reasons. We have taken into consideration great attention to our republic on behalf of other states, international community, in fact arriving in our republic representatives, experts, specialists and other officials are interested not only in political problems of the status of our state, but in its legal bases and, first of all, in its Constitution.

It's a pity but they had to get acquainted with the Fundamental Law of our state only in our official languages - Moldavian, Russian, Ukrainian, that, naturally, caused certain difficulties. Taking into consideration the given circumstance, the Constitutional Court has initiated edition of the Constitution in the six languages for the purpose of popularization of Fundamental Law of the Pridnestrovskaia Moldavskaia Respublika not only on the territory of the state, but also abroad."

On 17 September 2007, 97% of the voters supported independence. Will the results of the referendum, in your opinion, influence the attitude of the international community towards Pridnestrovie?

" - Yes, it is necessary to note, that the international community, obviously being afraid of a possible mass "parade of sovereignties", has taken an unfairly hard line concerning Pridnestrovie. But our republic has, de facto, been developing during more than 16 years and has now deserved the right to be recognized as an independent subject of international legal relations.

The referendum is one of the mechanisms which the citizens of our republic can apply on the way to our goal, which is international recognition. And on 17 September 2007 the citizens supported the sovereign, independent state.

I am confident that the international community will take people's opinion into consideration. The people have independently chosen this way, as it is true democracy. The referendum and its results form a serious message to the international community that the small and unrecognized country which is located on the bank of the Dniester River shall have the right to stand on its own two feet. And this statement cannot be ignored by other countries."

See also:
» PMR's Constitutional Court turns 5 years old
» Highest court in the country overturns unconstitutional laws