<<
>>

§ 3. Konstitutsionno-legal responsibility of candidates for Infringements of an order of carrying out of pre-election campaign as a guarantee of the rights of citizens on reception of the information on elections

As is known, material guarantees cannot be actually realised, if in forms defined by the law mechanisms of their maintenance are not provided, including as specific procedures of realisation of the rights and freedom, and specific procedures of their protection and restoration.

For infringements of statutory restrictions about the basic guarantees in sphere of a supply with information of elections various responsibility and features of penitantiary procedure to that complex researches of such authors as are devoted many to S.V.Bolshakov, S.D.Knyazev, T.G.Levchenko, M.S.Matejkovich, N.V.Vitruk is provided.

A.D.Iskhakov notices, that legal responsibility for infringements of norms of the suffrage - one of kinds of guarantees of suffrages of citizens and other participants of selective legal relations, legislatively

158

Fixed at the international, federal and regional levels. [158]

Proceeding from existing kinds of responsibility for infringements of an order of a supply with information of elections, infringers can be involved in civil, administrative, criminal and constitutional responsibility. Thus the constitutional responsibility for infringements of the selective legislation is represented as a measure of public responsibility and can be applied only within the limits of selective process. Feature of such responsibility is that the guilty person is limited in realisation of the suffrage. Other kinds of responsibility are not interfaced to such consequences.

As admissible restrictions of suffrages of citizens should be considered as their element garantirovannosti, it is necessary to shine a problematics of konstitutsionno-legal responsibility of candidates for infringements at pre-election campaign carrying out.

In the scientific literature there is no unequivocal approach to definition of concept of konstitutsionno-legal responsibility in the suffrage.

V.V. Ignatenko, S.D.Knyazev, V.A.Nomokonov recognise that «a konstitutsionno-legal liability of infringement of the legislation on elections consists in application to guilty participants of selective process of certain konstitutsionno-legal sanctions», [159] including in the form of cancellation of registration of candidates and a recognition of elections the void.

In turn, T.G.Levchenko, defining features konstitutsionno - legal responsibility in the suffrage as «absence of a regulation in the federal act of a remedial order of application to participants of selective process of some measures konstitutsionnopravovoj responsibility and its complex character», notices, that it is not enough given features for a recognition konstitutsionno-legal

Responsibility in the suffrage an independent kind

Responsibility ». [160]

S.V.Bolshakov considers, that «responsibility for infringements established by the legislation on elections of an order and rules of carrying out of pre-election campaign acts, along with other kinds of responsibility of participants of selective process, in quality publichnopravovogo means of maintenance of public requirement for the law and order during election campaign». [161]

D.S.Rymarev as a variant of the konstitutsionno-legal tort allocates the is selective-legal tort: guilty, illegal, socially harmful act in the form of the act or omission, encroaching on selective legal relations for which fulfilment on the basis of the legislation on elections to the corresponding subject it is selective - legal relations can be applied a measure of konstitutsionno-legal responsibility.

[162]

A.E.Shturnev marks presence of system of measures of konstitutsionno-legal responsibility for selective offences in which following properties are inherent: 1) absolute definiteness and bezalternativnost sanctions in which find the expression of a measure of konstitutsionno-legal responsibility; 2) high degree of an individualization of kinds of these measures with reference to the subjects possessing the special status in selective process, and kinds of selective offences; 3) dependence of application of these measures on a stage (stage) of selective process. [163]

Considering, that measures of konstitutsionno-legal responsibility are applied, as a rule, for infringement of the selective legislation at carrying out of propaganda, A.A.Malinovsky uses such concept as «misuse of right on pre-election campaign carrying out», allocating following elements of structure of an offence: 1) presence at the subject of the suffrage; 2) fulfilment of actions on suffrage realisation in the contradiction with its maintenance; 3) injury to participants of public relations. [164] thus the concept illustrates examples from judiciary practice according to which propaganda materials of candidates were estimated as breaking statutory requirements about the basic guarantees. Such approach is worthy, as allows to narrow a circle of offences for which konstitutsionno-legal responsibility is provided, to the offences made in election campaigns.

Thus it is necessary to notice, that responsibility in the suffrage is prospect of the permission of selective disputes, to concept and to which classification many researches also are devoted.

According to A.V.poshivajlovoj, depending on a coordination of claims of participants of selective process selective relations can be classified on disputable and indisputable. Indisputable relations the majority. Meanwhile disputable legal relations it is expressed in impossibility of realisation of rights by the authorised person and is one of possible variants of development reguljativnogo selective legal relation, is its special condition. In turn, selective dispute is defined by A.V.poshivajlovoj as «special selective legal relation in which frameworks there is uncertain a maintenance of concrete subjective suffrages and duties or disputable there is a fact of their existence, arising between subjects of the suffrage, as a result of a reference to the court or in electoral commission in view of presence

Mutually exclusive interest concerning realisation or application of norms of the suffrage ». [165]

R.A.Ohotnikov defines selective disputes more capaciously, but with reflexion of function inherent in them, as «selective legal relations of guarding character». [166]

Analyzing institute of konstitutsionno-legal responsibility for infringements at pre-election campaign carrying out, it is expedient to pay attention and a problem of abusing freedom of the mass information at election campaign carrying out. The given problem is considered by modern researchers as independent konstitutsionnopravovoj the tort. So, A.L.Magdanov adheres to the position expressed in the scientific literature [167] that the essence of freedom of mass-media has estestvennopravovoj character and is natural social claim. [168 [169]

Generalising the discrimination to definition of concept of abusing by suffrages, A.L.Magdanov obosnovanno allocates the general elements of such definition: excess of subjects of limits of realisation of the suffrage, breaking suffrages of other subjects. Thus underlines, that the being of such abusing consists in distortion of the purpose of realisation of the right, abusing which is admitted. In turn, misuse of right as the separate kind of an offence is caused by deviation from instructions ch. 3 items 17 of the Constitution of the Russian Federation that realisation of the rights and freedom of the person and the citizen should not break the right and freedom of others

169

Persons.

Meanwhile it is necessary to notice, that there are participants of selective process who are not allocated by subjective suffrages. For example, it is the organisations which are carrying out release of mass-media. Such subjects realise other rights and freedom during election campaigns: the rights to reception, processing and information distribution. Hence, it is possible to conclude, that abusing not only suffrages, but also other rights and freedom (as item 56.1 of the Law on the basic guarantees operates with concept «abusing freedom of mass-media») can deform the purpose of their realisation and break subjective suffrages of citizens.

Thus it is necessary to note feature of the standard maintenance of institute of abusing freedom of mass-media in the selective legislation. Namely, close interpretation of item 1.1 of item 56 of the Law on the basic guarantees establishes, that abusing freedom of mass-media are both specified in the given law, and other infringements.

Thus, the classification of abusing offered by A.L.Magdanovym by freedom (right) is proved: 1) realisation of actions which are directly forbidden by the law; 2) realisation of the actions, which express prohibition in the legislation does not contain, but the given actions break rights of other subjects, and also

- 170

Principle of legal equality of participants of legal relations.

The first kind of misuse of right is caused by the approach of the legislator and directly named in item 1 of item 56 of the Law on the basic guarantees. In turn, the second kind of misuse of right is caused

171

Both a theoretical substantiation, and a substantiation pravoprimenitelja.

A.L.Magdanov, considering positions of subitem 1.1 of item 56 of the Law on the basic guarantees, item 4 of the Law on mass-media offers following definition [170 [171] abusing freedom of the mass information during election campaign carrying out as konstitutsionno-legal tort is illegal use by certain participants of elections intended for an unlimited circle of persons printing, audio - audiovisual and other messages and materials, and also use by different ways of freedom of the mass information during the election campaign carrying out, breaking the rights and legitimate interests of other persons, the states, societies as a whole and attracting application of measures of konstitutsionno-legal responsibility. Also it allocates following basic signs of such abusing: 1) the considered structure of abusing always assumes use of the mass information by means of which illegal influence on an unlimited circle of persons is carried out; 2) the given offence can be made only during election campaign carrying out; 3) encroaches on the rights and legitimate interests of other persons, the states, societies as a whole.

It is necessary to make following specifications with reference to the maintenance of the first and the second of resulted three signs. First, abusing the suffrage with use of mass media assumes, that mass-media is used as a method of distribution of propaganda. It is connected by that measures konstitutsionno - legal responsibility are applied in a situation when infringement of the selective legislation is interfaced to propaganda carrying out. And considering, that such responsibility (cancellation of registration of the candidate (the list of candidates), an exception of the candidate of the registered list of candidates, cancellation of results of voting and election returns) limits the passive suffrage of the subject, admitted abusing, a circle of offenders is limited to candidates and selective associations.

Secondly, the period when abusing can be the basis for [172] applications of measures of konstitutsionno-steam responsibility not should will be defined as identical to the election campaign period, it narrower. It is connected by that abusing is interfaced to propaganda, and the propaganda period has the beginning from the moment of promotion of the candidate, the list of candidates (item 49 of the Law on the basic guarantees). In turn, after official publication of election returns the legislator establishes a year for their contest (item 3 of item 78 of the Law on the basic guarantees), that too assumes restrictions of the passive suffrage of the selected candidates in connection with the admitted infringements, including connected with abusing freedom of mass-media at propaganda carrying out.

As the suffrage does not carry absolute character, the problem of misuse of right is connected and with a problem of a parity of concepts of restriction and right belittling meaning that also the legislator should not abuse discretion freedom at regulation of electoral relations. V.A.Tcherepanov in the work «To a question on belittling of suffrages of citizens» correlates concepts "restriction" and right "belittling". Agreeing with settled in the scientific literature a definition of restriction of the right, the author opens its maintenance through the established limits of realisation of competences of the subject. In turn, V.A.Tcherepanov understands wrongful, inadmissible reduction of volume of competences of the subject of law as belittling of the right. As an example of belittling of the passive suffrage V.A.Tcherepanov results last changes in the selective legislation regarding majority system abolition at elections in the State Duma of Federal assembly of the Russian Federation. In a substantiation of such thesis, taking into account an order of formation (promotion) of lists of candidates from political parties, arguments about sharp reduction quantity of [173] people which can participate in election campaign as candidates are put. Also entered since 2004 and cancellation of elections of the higher officials of subjects of the Russian Federation existing until recently is considered by V.A.Tcherepanov as belittling of the active and passive suffrage similar inherently.

Such arguments are represented disputable in the respect that limits of the discretion of the legislator regarding the electoral system organisation are wide enough, that is underlined in the Decision of the Constitutional Court of the Russian Federation from December, 21st, 2005 № 13-P: « ... The federal legislator has the right to select the mechanisms of the organisation of the government most effective and proportional to the constitutional purposes, including at investment with powers public authorities and officials in which relation the corresponding order directly is not provided in the Constitution of the Russian Federation, observing thus the constitutional principles and norms and providing the balanced combination of powers and interests of the Russian Federation, on the one hand, and subjects of the Russian Federation - with another ». It is necessary to pay attention that the competence of the federal legislator through balancing of interests of federation and its subjects is based on Court that reflects specificity of federalism of the Russian Federation regarding differentiation of terms of reference and powers between the federal centre and subjects.

According to V.V. Chistopolova, abusing suffrages at propaganda carrying out can be connected that to the pre-election campaign maintenance, unlike informing, reliability demands are not made. It should break constitutional laws of citizens on reception of full, objective and authentic [174] information on selective process and generates manipuljativnye selective technologies. In our opinion, with such argument unequivocally to agree it is impossible, as for the propaganda maintenance bears responsibility the candidate (item 4 of item 48 of the Law on the basic guarantees). And being motivirovan the purpose to induce voters to voting for it, in propaganda materials slogans and sights contain a various sort, that, as a matter of fact, is expression of belief and does not come under to verification about conformity of the validity. Hence, legislative fastening of the requirement about reliability of propaganda will be considered as unconstitutional restrictions of the right on distribution of the belief (item 28 of the Constitution of the Russian Federation). Also it is necessary to notice, that in a situation when propaganda, as a rule, negative, contains elements of abusing freedom of the mass information (item 1.1 of item 56 of the Law on the basic guarantees) and signs of other offences (distribution of damaging evidences, the insult, slander), exist additional remedies at law (item 152 GK the Russian Federation, item 5.61 KoAP the Russian Federation, item 128.1 UK the Russian Federation [175] [176]).

The institute of konstitutsionno-legal responsibility of candidates for infringements at pre-election campaign carrying out provides concrete sanctions: 1) to cancel the decision of electoral commission on registration of the candidate (the list of candidates); 2) to cancel registration of the candidate; 3) to cancel registration of the candidate included in the registered list of candidates; 4) to cancel the decision of electoral commission on voting results, on election returns (item 76, item 77 of the Law on the basic guarantees). Thus the court realises competence on application of such sanctions.

But, as not for each infringement at carrying out of propaganda the court is competent to apply to candidates the listed measures konstitutsionnopravovoj responsibility, follows, that the last are limited under the list of the bases. According to item 7 of item 76 of the Law on the basic guarantees the court can cancel registration of the candidate in following cases:

- Uses by the candidate with a view of achievement of certain result on elections of money resources besides means of own selective fund if their sum has exceeded 5 percent from the limiting size of an expenditure of means of selective fund, statutory, or excess of the limiting size of an expenditure of means of selective fund, statutory, more than for 5 percent;

- Numerous use by the candidate of advantages official or the official position;

Findings of fact of payoff of voters by the candidate, its authorised representative authorised by the representative on financial questions, and also operating under their commission other person or the organisation;

- Non-observance by the candidate of the restrictions provided by point 1 or 1.1 articles 56 of the Law on the basic guarantees;

Numerous non-observance by the candidate of the restrictions provided by point 5.2 of article 56 of the Law on the basic guarantees.

By rules of item 8 of item 76 of the Law on the basic guarantees registration of the list of candidates can be cancelled court in cases:

- Uses by selective association with a view of achievement of certain result on elections of money resources besides means of own selective fund if their sum has exceeded 5 percent from the limiting size of an expenditure of means of selective fund, statutory, or excess of the limiting size of an expenditure of means of selective fund, statutory, more than for 5 percent;

Numerous use by the head of selective association of advantages official or the official position;

Findings of fact of payoff of voters by selective association, its authorised representative authorised by the representative, and also operating under their commission other person or the organisation;

- Non-observance by selective association of the restrictions provided by point 1 or 1.1 articles 56 of the Law on the basic guarantees, and also non-observance by the candidate included in the registered list of candidates, the restrictions provided by point 1 of article 56 of the Law on the basic guarantees if the selective association which has put forward this list, does not exclude such candidate from the list according to point 11 of present article;

- Numerous non-observance by selective association of the restrictions provided by point 5.2 of article 56 of the Law on the basic guarantees.

In item 76 item 9 the bases for cancellation of registration of the candidate included in the registered list of candidates are defined:

- Numerous use by the candidate of advantages official or the official position;

- Non-observance by the candidate of the restrictions provided by point 1 or 1.1 articles 56 of the Law on the basic guarantees;

- Finding of fact of payoff of voters by the candidate, and also operating under its commission other person or the organisation.

If to analyse the resulted bases all infringements specified in them are interfaced to non-observance by the law of the established restrictions at pre-election campaign carrying out. Thus, at qualification of infringements it is necessary to be guided by additional norms of the Law on the basic guarantees.

Infringement of an order of financing of election campaign is connected with non-observance of requirements of item 5 of item 48 of the Law on the basic guarantees: expenses on pre-election campaign carrying out are carried out exclusively at the expense of means of corresponding selective funds in a statutory order. Propaganda for the candidate, the selective association, paid of means of selective funds of other candidates, selective associations, is forbidden.

Forms of use of advantages official or the official position and a corresponding interdiction are defined in item 40 of the Law on the basic guarantees.

Forms of payoff of voters and an interdiction for payoff of voters at propaganda carrying out are established item 2 of item 56 of the Law on the basic guarantees.

The bases not supposing abusing by freedom of the mass information and forbidding negative propaganda on air, contain in blanketnyh norms. Besides, to qualify propaganda as breaking the legislation of the Russian Federation on the intellectual

177

It is possible for the property only with application ch. 4 GK the Russian Federation.

At contest of election returns such bases are excluded from the listed bases as infringement of the legislation of the Russian Federation about intellectual property and distribution of negative propaganda on air. At the same time the federal act from April, 02nd, 2014 № 51-FZ «About modification of separate acts of the Russian Federation» enters the such

The additional basis of cancellation of the decision of electoral commission about results of corresponding elections after definition of their results as an establishment of other infringements of the legislation of the Russian Federation about elections if these infringements do not allow to reveal the valid will of voters. Formally any infringement can be carried to such infringements at propaganda carrying out.

However in all cases, except infringements in an expenditure of means of selective fund, as an obligatory element of proving at [177 [178] contest of election returns the circumstance of impossibility of definition of the valid will of voters (item 2 acts. Item 77 of the Law on the basic guarantees). It testifies that the legislator differentiates infringements depending on their importance.

From item 76 analysis, item 77, item 78 of the Law on the basic guarantees follows, that there are restrictions on a circle of subjects of selective dispute and in time. [179]

Depending on istrebuemoj the responsibility measures, as the appropriate applicant the electoral commission can act registered the candidate (the list of candidates), the candidate registered on the same election district, the selective association which list of candidates is registered on the same election district, the public prosecutor (a special circle of subjects), and at contest of results of voting, election returns addresses in court with the complaint the general circle of subjects certain by item 10 of item 75 of the Law on the basic guarantees (voters, candidates, their authorised representatives, selective associations and their authorised representatives, other public associations, observers, and also the commissions) can.

Besides it, item 78 of the Law on the basic guarantees are established restrictions in time for giving and the permission of corresponding complaints. So, the complaint to the decision of the commission about registration, about refusal in registration of the candidate (the list of candidates), about assurance, about refusal in assurance of the list of candidates, the list of candidates on one-mandatory (multimandatory) election districts can be submitted within ten days from the date of acceptance obzhaluemogo decisions. The specified term does not come under to restoration.

After official publication of election returns the complaint to infringement of suffrages of the citizens who were taking place in election campaign, can be brought an action within one year from the date of official publication of results of corresponding elections.

Decisions under the complaints which have arrived before ballot day in election campaign, are accepted in five-day term, but not later than the day previous ballot day, and in ballot day or in the day following ballot day, - immediately. If the facts containing in complaints, demand additional check, decisions on them are accepted not later than in ten-day term. Under the complaint to the decision of the commission about voting results, about election returns the court is obliged to make the decision not later than in two-month term from the date of complaint giving.

The statement for cancellation of registration of the candidate, the list of candidates can be brought an action not later than eight days prior to ballot day (including repeated). The Decree should be accepted not later than five days prior to ballot day.

According to the author, legislative restrictions at application by vessels of measures of a liability of infringement of the selective legislation at propaganda carrying out under the list of the bases, a circle of subjects and in time do not cause any ambiguities in pravoprimenitelnoj to practice. Meanwhile it is necessary to notice complexity of construction of the Law on the basic guarantees, that at the permission of concrete selective dispute staticizes application as blanketnyh norms, and norms of different heads of the law in their set. It should complicate construction of a legal position of participants of selective disputes and definition of judicial prospect of their permission. In the scientific literature in this occasion similar opinions are expressed.

S.D.Knyazev and R.A.Ohotnikov as the typical reason

Occurrence of selective disputes specify on «discrepancy and

180

Instability of legal regulation of selective relations ». [180]

S.I.Tsybuljak carries to the reasons of deficiency of rules of law

181

Excessively frequent modernisation of the selective legislation.

S.A.Hvalyov, marking lacks of legal quality of the laws regulating an order of the organisation and elections in Russian

Federations, as a necessary condition of legal quality of laws

182

Refers to availability of their understanding and simplicity of application.

But in bolshej degrees non-uniform judiciary practice, at a sight of the author, are caused by that circumstance, that deciding selective difference and establishing presence of the bases for application of measures of responsibility, the court realises competence to their application.

For example, proceeding from the analysis of the legislative formulation of item 1.1 of item 56 of the Law on the basic guarantees follows, that on the design it carries the propaganda breaking the legislation of the Russian Federation about intellectual property, to the form of abusing freedom of the mass information. Thus in importance of such form of abusing specifies that despite the list opened in this part, the legislator in addition specifies in an interdiction only to that propaganda that contains appeals to fulfilment of the acts defined in item 1 of the Federal act from July, 25th, 2002 № 114-FZ «About counteraction of extremist activity» as extremist activity, or a different way induces to such acts, and also proves or the extremism justifies; Propagandas that initiates social, racial, national or religious rozn, national advantage degrades, propagandises exclusiveness, the superiority or inferiority of citizens on the basis of their relation to religion, a social, racial, national, religious or language accessory; and also that [181 [182] [183] propagandas at which carrying out propagation and public demonstration of nazi attributes or symbolics or attributes or the symbolics are carried out, similar to nazi attributes or symbolics to degree of their mixture. In turn, subitem « d »item 7 of item 76 of the Law on the basic guarantees contains blanketnuju the norm providing as a measure of responsibility for such infringement cancellation of registration of the candidate. It is necessary to pay special attention that from close interpretation of item 8 of item 76 of the Law on the basic guarantees follows that this sanction is applied by court as realisation of the right to its application. That is in practice the court applies the sanction taking into account an estimation of degree of the admitted infringement as that is demanded by norm ch. 3 items 55 of the Constitution of the Russian Federation.

At the same time the judiciary practice connected with application of measures of konstitutsionno-legal responsibility to candidates for infringement of the legislation of the Russian Federation about intellectual property is inconsistent enough, that follows from mentioned below judicial decisions.

Having established the fact of infringement by candidate P of the legislation of the Russian Federation about intellectual property at propaganda carrying out, the regional court of Republic Kareliya the decision from March, 01st, 2007 did not begin to cancel its registration, having referred that this sanction, «connected with restriction of suffrages, should be carried out on the basis of following of ch. 3 items 55 of the Constitution of the Russian Federation of a principle of harmony. Therefore application of only formal bases of cancellation of registration is inadmissible... Without the circumstances testifying about

Insignificance of infringements of the legislation of the Russian Federation about

184

The intellectual property, admitted P ».

The similar motivation meets and in the decision of regional court of Republic Kareliya from June, 11th, 2009 on business about cancellation of registration [184]

The candidate in connection with a copyright infringement at carrying out

185

Propagandas.

However there is also other approach which is not putting application of the sanction in dependence on degree of infringement. For example, in the decision of Seaside regional court from September, 28th, 2006 the court has specified that norm of subitem "d" item 7 of item 76 of the Law on the basic guarantees «does not put sanction application in dependence fulfilment by the candidate at carrying out of propaganda of infringements of the legislation on intellectual property from approach of any consequences, and also from insignificance of the admitted infringements». [185 [186]

Also in the decision of the Supreme Court of Republic Kareliya on business № 3 - 38/2011 from November, 28th, 2011 about cancellation of registration of candidate A.A. M th in deputies of the House of Assembly of Republic Kareliya of the fifth convocation on "Kukkovsky" one-mandatory election district № 8 court actually has not subjected to an estimation degree of a copyright infringement and has not expressed harmony of the applied sanction to the admitted infringement. Namely, the court motivated the decision as follows: «the Analysis of the specified propaganda material with sculpture photos specifies that these images on a booklet cover« We Kukkovka »and obverse pages of newspapers is the basic object of this reproduction. On a booklet cover the given sculpture is in the centre in the foreground, the given photo contains obviously expressed reproduction of the specified object of architecture; the sculpture of a cock in the left part of obverse pages of newspapers is represented as an area Kukkovka symbol.

The court, having estimated the presented proofs, comes to conclusion that the given propaganda materials containing the images

Architecture products, were used in propaganda activity

187

The candidate without reception of the consent of the author on its use ».

The court approach when application of measures of konstitutsionno-legal responsibility is caused by the general instruction ch is more defensible. 3 items 55 of the Constitution of the Russian Federation that the rights and freedom of the person and the citizen can be limited by the federal act only in that measure in what it is necessary with a view of protection of bases of the constitutional system, morals, health, the rights and legitimate interests of other persons, maintenance of defence of the country and safety of the state.

Moreover, such approach will completely be adjusted with an explanation of the Constitutional Court of the Russian Federation, expressed in the Decision from February, 18th, 2000 № 3-П: «the legislator, defining means and ways of protection of the state interests, should use only those from them which for concrete pravoprimenitelnoj situations exclude possibility of disproportionate restriction of the rights and freedom of the person and the citizen; at an admissibility of restriction of this or that right according to konstitutsionno the approved purposes the state should use not excessive, but only the measures necessary and strictly caused by these purposes; the public interests listed in item 55 (ch. 3) Constitutions of the Russian Federation, can justify legal restrictions of the rights and freedom, only if such restrictions are adequate to socially necessary result; the purposes of one only the rational organisation of activity of authorities cannot form the basis for restriction of the rights and freedom».

Thus, available in the legislation of the Russian Federation of restriction at application by vessels of measures of responsibility to candidates for infringement of the selective legislation at carrying out of pre-election [187 [188] propagandas are necessary, speaking language of the Constitutional Court of the Russian Federation, for maintenance of "socially necessary result». It is obvious, that realisation of interests of separate political group in the name of candidates (lists of candidates), causes realisation of interests of its electorate, that in turn, provides free and alternative elections. Thereupon to the author sees admissible and justified granting to right court to apply responsibility measures to the candidates who have admitted infringement of the selective legislation at carrying out of pre-election campaign.

However in a situation when the court in the presence of the corresponding bases does not apply a possible measure of responsibility to candidates, realisation of principles of equality of candidates, free will of citizens is represented problematic, to inevitability of punishment. And as only free elections are considered as realisation of the direct form of democracy, the author believes, that obligatory informing of voters on the admitted infringements at pre-election campaign carrying out will allow the voter to realise free will, and also will protect infringers from similar abusings.

From considered above the legislative list of forms of abusings freedom of mass-media as the bases for cancellation by court not only registration of the candidate, but also the decision of electoral commission on results of corresponding elections after definition of their results, as the independent basis excludes only infringement of the legislation of the Russian Federation about intellectual property.

In our opinion, such exception will not be adjusted with the feature of juridiko-technical construction of item 1 noted earlier and item 1.1. Item 56 of the Law on the basic guarantees. It essentially reduces guarding function of institute of responsibility of candidates for infringement of the selective legislation.

From the point of view of procedure of attraction of candidates to responsibility, also it is necessary to specify in problems of proving of legally significant circumstances on business that is connected with specificity of legal objects of intellectual property and complex legal regulation in this sphere. In particular, special research for acknowledgement of conformity of illegally used copy of author's product to its original, or for acknowledgement of distortion of author's product, or for contest of the documentary can be demanded

Proofs of legitimacy of use of the legal object of intellectual property: linguistic, technical,

Phonographic, fonoskopicheskoe, pocherkovedcheskoe or other. It can lead to the admission of term for removal of the judicial certificate about cancellation of registration of the candidate established by item 9 of item 290 GPK the Russian Federation as five days before ballot day. In such situation, considering positions of item 220 GPK the Russian Federation manufacture on business comes under to the termination. So, for example, Definition of the Supreme Court of Republic Kareliya had been ceased manufacture on business about cancellation of registration of candidate N in connection with the admission of the named term for decision-making. Thus recently appeared norm GPK the Russian Federation allowing vessels to define term of preparation of expert judgements, cannot exclude such situation in any way. Cannot give a necessary guarantee and rules of procedure about an independent estimation court of the arguments stated in a notice of infringement of suffrages. Meanwhile research of the expert is frequently taken as a principle a judgement and guarantees its completeness and objectivity. It is important to notice, that principles of objective and all-round consideration of selective dispute play a special role in a situation when the requirement is interfaced to [189] restriction of the suffrage. And today the problem of restriction of suffrages draws the increasing attention of researchers.

As marks A.A.Troitsk, right restriction is the narrowing of sphere of action of a fundamental law based on the Constitution proportional konstitutsionno to protected values. The requirements mediating legitimacy of restrictions: 1) the appropriate form; 2) the defensible purpose; 3) observance of a principle of harmony; 4) preservation of essence of a subject

190

To right restriction.

The same approach is reflected and in pravoprimenitelnoj to the practice connected with verification of norms of the selective legislation in sphere of a supply with information of elections. So, in the Decision of the Constitutional Court of the Russian Federation from October, 30th, 2003 № 15-P [190 [191] following explanations contain: « At the same time, as follows from the Russian Federations formulated by the Constitutional Court of legal positions, restrictions of constitutional laws, including, hence, freedom of the mass information, should be necessary and proportional konstitutsionno to the recognised purposes of such restrictions; when the constitutional norms allow the legislator to establish restrictions of the rights fixed by them, it cannot carry out such regulation which would encroach on a being of this or that right and would lead to loss of its real maintenance; at an admissibility of restriction of this or that right according to konstitutsionno the approved purposes the state, providing balance konstitutsionno protected values and interests, should use not excessive, but only the measures necessary and strictly caused by these purposes; the public interests listed in item 55 (ch. 3) Constitutions of the Russian Federation, can justify legal restrictions of the rights and freedom, only if such restrictions meet the requirements of justice, are adequate, proportional, proportional and necessary for protection konstitutsionno significant values, including the rights and legitimate interests of other persons, have no retroactive effect and do not mention a being of a constitutional law, i.e. do not limit limits and application of the basic maintenance of corresponding constitutional norms; to exclude possibility of disproportionate restriction of the rights and freedom of the person and the citizen in concrete pravoprimenitelnoj situations, the norm should be formally certain, exact, accurate and clear, established restrictions not supposing extensive interpretation and, hence, their any application ».

The approach of scientists and experts with reference to a question on the admissible form of restrictions of fundamental laws is meanwhile ambiguous. So, B.S.Ebzeev considers, that the Constitution of the Russian Federation (ch. 3 items 55 and ch. 1 item 56) supposes an establishment of restrictions in the form of the federal constitutional law and the federal act. In turn, A.A.Troitsk marks also other possible form of introduction of restrictions: the law of the subject of the Russian Federation that follows from item 72 of the Constitution of the Russian Federation defining a circle of questions, subjects of the Russian Federation concerning joint conducting. [192 [193]

In spite of the fact that protection of suffrages of citizens is in joint conducting the Russian Federation and its subjects, restriction of the passive suffrage as a measure of the constitutional responsibility of candidates can be established only norm of the federal act as concerns system of the general guarantees of suffrages of citizens.

It is possible to draw following conclusions.

The institute of konstitutsionno-legal responsibility of candidates for infringement of the selective legislation of the Russian Federation in sphere of a supply with information of elections has accurate standard fastening and a theoretical substantiation.

As the measure of legal responsibility konstitutsionno-legal responsibility in a broad sense is a guarantee of realisation of suffrages of citizens. And as konstitutsionno-legal responsibility is provided for a number of infringements of the selective legislation at propaganda carrying out, it should be considered as a guarantee of realisation of the right of citizens on reception and propaganda distribution.

The legal regulation analysis, pravoprimenitelnoj practice and theoretical approaches to the maintenance of konstitutsionno-legal responsibility of candidates for infringements at propaganda carrying out its intrinsic characteristics allow to allocate.

First, complex legal regulation and presence of estimated categories is inherent in the given institute at the permission of a question on application of sanctions to candidates-infringers. Secondly, provided by the legislation on sanction elections for infringements of an order of a supply with information of elections have by the legal nature public character, involve restriction of the passive suffrage of candidates and do not exclude possibility of application of measures civil, administrative and the criminal liability to the infringer. Thirdly, the liability of infringement of a supply with information of elections is represented as a measure of a konstitutsionno-legal liability of infringement of the legislation on elections.

In spite of the fact that some infringements at propaganda carrying out are considered as the basis for cancellation of registration of the candidate, they are not the basis for contest of results of voting or election returns that reduces guarantees of citizens in sphere of a supply with information of elections.

147

179

<< | >>
A source: UHANOVA Anna Pavlovna. THE SUPPLY WITH INFORMATION OF ELECTIONS AS THE GUARANTEE OF REALIZATION OF SUFFRAGES OF CITIZENS IN The RUSSIAN FEDERATION. The DISSERTATION on competition of a scientific degree of the master of laws. Petrozavodsk 2015. 2015

More on topic § 3. Konstitutsionno-legal responsibility of candidates for Infringements of an order of carrying out of pre-election campaign as a guarantee of the rights of citizens on reception of the information on elections:

  1. § 2. Pre-election campaign as a guarantee of realisation of suffrages of citizens in the Russian Federation
  2. Koval Darya Vladislavovna. INFRINGEMENTS of the LEGISLATION ON INTELLECTUAL PROPERTY In PRE-ELECTION CAMPAIGN In the CONTEXT of KONSTITUTSIONNO-LEGAL RESPONSIBILITY. The dissertation On competition of a scientific degree of the master of laws. Moscow - 2016, 2016
  3. § 2. Kinds of infringements of the legislation on intellectual property in pre-election campaign
  4. 1. The Teoretiko-legal characteristic of pre-election campaign and its value in election campaign.
  5. Chapter 2. A konstitutsionno-legal liability of infringement of the legislation on the intellectual Properties in pre-election campaign
  6. 3. International legal aspects of standard regulation of pre-election campaign in the modern democratic states.
  7. Chudov Paul Sergeevich. Konstitutsionno-legal regulation of pre-election campaign in the subjects of the Russian Federation who are in limits Southern federal district. The dissertation on competition of a scientific degree of the master of laws. Stavropol - 2005, 2005
  8. Images of candidates in presidential election campaign of 2012 the Image G.A.Zjuganova
  9. Chapter 2. Features of perception of political leaders - of candidates in presidents in election campaign of 2012
  10. 2. Formation of standard regulation of pre-election campaign in Russia.
  11. the CHAPTER III. Access right to the information on the Internet as the constitutional guarantee of an openness of the power and realisation of other rights and freedom of citizens in an information society
  12. § 2. Participants of elections as subjects of konstitutsionno-legal responsibility
  13. § 1. Features of separate elements of structure of infringement Legislations on intellectual property in pre-election campaign
  14. § 1. Concept and features of konstitutsionno-legal responsibility of participants of elections
  15. 2. Features of the legislation of subjects of the Russian Federation which is in limits of Southern federal district, about pre-election campaign and practice of its realisation.
  16. UHANOVA Anna Pavlovna. THE SUPPLY WITH INFORMATION OF ELECTIONS AS THE GUARANTEE OF REALIZATION OF SUFFRAGES OF CITIZENS IN The RUSSIAN FEDERATION. The DISSERTATION on competition of a scientific degree of the master of laws. Petrozavodsk 2015, 2015
  17. § 3. Guarantees of the rights of citizens on the information on elections With reference to participants and stages of selective process in the Russian Federation
  18. the Chapter II. The maintenance legal podinstituta - pre-election campaign and practice of realisation of its norms in the subjects of the Russian Federation who are in limits of Southern federal district
  19. the Head І. Teoretiko-legal bases of carrying out of the pre-election Propagandas