The principle of proportionality of constitutional responsibility of elected officials: theory, foreign experience and problems of Russian law enforcement
The subject of the research is the principle of proportionality as an intersectoral principle of legal responsibility. It has a constitutional nature and guarantees fairness in resolving the cases of constitutional responsibility. This principle provides individualization of constitutional-legal san...
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| Format: | Article |
| Language: | Russian |
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Dostoevsky Omsk State University
2021-04-01
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| Series: | Правоприменение |
| Subjects: | |
| Online Access: | https://enforcement.omsu.ru/jour/article/view/439 |
| _version_ | 1826564468547518464 |
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| author | V. V. Ignatenko I. A. Minnikes A. V. Nikitina |
| author_facet | V. V. Ignatenko I. A. Minnikes A. V. Nikitina |
| author_sort | V. V. Ignatenko |
| collection | DOAJ |
| description | The subject of the research is the principle of proportionality as an intersectoral principle of legal responsibility. It has a constitutional nature and guarantees fairness in resolving the cases of constitutional responsibility. This principle provides individualization of constitutional-legal sanction and its proportionality to the constitutional tort, circumstances, reasons, conditions and consequences of its commission. The purpose of the article is to confirm or dispute the hypothesis that the principle of proportionality should be taken into account both in the description of the constitutional torts of elected officials in the legislation, and in the application of the rules on constitutional responsibility Methodology. The method of legal comparison is the main method of the research. The authors carry out the comparative analysis of practice of the foreign constitutional courts, the European Court of Human Rights concerning the subject of research. Traditional methods of legal academic knowledge – the analysis, synthesis, deduction, induction and a formal legal interpretation – were used also. The main results of the research and the scope of their application. The authors research the theoretical foundations, foreign experience, problems of applying the principle of proportionality in the process of implementing the constitutional-legal responsibility of elected officials in order to formulate the proposals for improving the Russian legislation and the law enforcement practice. The principle of proportionality of constitutional responsibility should be reflected in the legislation and implemented in the law enforcement practice. The measures of constitutional liability to elected officials can be based not on any, but only on a serious, gross violation of the Constitution and laws, indicating the guilty conduct. Such constitutionally punishable conduct should cause damage to the protected constitutional values or pose a threat of such damage and therefore be incompatible with the further exercise of the public legal duties and powers. Conclusions. The composition of constitutional torts should be formulated with a certain degree of abstraction in such way that conditions are created for the enforcer to take into account the repetition, systematic, duration, severity or insignificance of the committed tort and the other factors that can individualize the constitutional responsibility. Judicial and the other enforcement bodies should enforce early termination of the powers of an official as an exceptional, extreme measure of constitutional responsibility based on the principle of proportionality. The nature and severity of the constitutional offence committed, the causes, conditions and consequences thereof, the degree of guilt of the offender, consequences of the sanction for the further exercise by the person of his constitutional rights and freedoms in the political and legal sphere and the other important circumstances must be considered in case of early termination of the powers of an official. The law enforcement body should assess each time whether such measure is proportionate to the constitutional offence committed, and whether it was strictly necessary to protect the constitutional values. |
| first_indexed | 2024-04-10T01:24:40Z |
| format | Article |
| id | doaj.art-1c2049fa766d4148bb9de0713aa33b6c |
| institution | Directory Open Access Journal |
| issn | 2542-1514 2658-4050 |
| language | Russian |
| last_indexed | 2025-03-14T10:20:20Z |
| publishDate | 2021-04-01 |
| publisher | Dostoevsky Omsk State University |
| record_format | Article |
| series | Правоприменение |
| spelling | doaj.art-1c2049fa766d4148bb9de0713aa33b6c2025-03-02T11:08:28ZrusDostoevsky Omsk State UniversityПравоприменение2542-15142658-40502021-04-015110812310.52468/2542-1514.2021.5(1).108-123287The principle of proportionality of constitutional responsibility of elected officials: theory, foreign experience and problems of Russian law enforcementV. V. Ignatenko0I. A. Minnikes1A. V. Nikitina2Baikal State UniversityIrkutsk Law Institute – branch of the All-Russian State University of Justice (RLA of the Ministry of Justice of Russia)Khabarovsk State University of Economics and LawThe subject of the research is the principle of proportionality as an intersectoral principle of legal responsibility. It has a constitutional nature and guarantees fairness in resolving the cases of constitutional responsibility. This principle provides individualization of constitutional-legal sanction and its proportionality to the constitutional tort, circumstances, reasons, conditions and consequences of its commission. The purpose of the article is to confirm or dispute the hypothesis that the principle of proportionality should be taken into account both in the description of the constitutional torts of elected officials in the legislation, and in the application of the rules on constitutional responsibility Methodology. The method of legal comparison is the main method of the research. The authors carry out the comparative analysis of practice of the foreign constitutional courts, the European Court of Human Rights concerning the subject of research. Traditional methods of legal academic knowledge – the analysis, synthesis, deduction, induction and a formal legal interpretation – were used also. The main results of the research and the scope of their application. The authors research the theoretical foundations, foreign experience, problems of applying the principle of proportionality in the process of implementing the constitutional-legal responsibility of elected officials in order to formulate the proposals for improving the Russian legislation and the law enforcement practice. The principle of proportionality of constitutional responsibility should be reflected in the legislation and implemented in the law enforcement practice. The measures of constitutional liability to elected officials can be based not on any, but only on a serious, gross violation of the Constitution and laws, indicating the guilty conduct. Such constitutionally punishable conduct should cause damage to the protected constitutional values or pose a threat of such damage and therefore be incompatible with the further exercise of the public legal duties and powers. Conclusions. The composition of constitutional torts should be formulated with a certain degree of abstraction in such way that conditions are created for the enforcer to take into account the repetition, systematic, duration, severity or insignificance of the committed tort and the other factors that can individualize the constitutional responsibility. Judicial and the other enforcement bodies should enforce early termination of the powers of an official as an exceptional, extreme measure of constitutional responsibility based on the principle of proportionality. The nature and severity of the constitutional offence committed, the causes, conditions and consequences thereof, the degree of guilt of the offender, consequences of the sanction for the further exercise by the person of his constitutional rights and freedoms in the political and legal sphere and the other important circumstances must be considered in case of early termination of the powers of an official. The law enforcement body should assess each time whether such measure is proportionate to the constitutional offence committed, and whether it was strictly necessary to protect the constitutional values.https://enforcement.omsu.ru/jour/article/view/439principle of proportionalitybalancing testconstitutional responsibilityconstitutional violationconstitutional courtconstitutional-legal disputesconflict of constitutional valuesright to vote |
| spellingShingle | V. V. Ignatenko I. A. Minnikes A. V. Nikitina The principle of proportionality of constitutional responsibility of elected officials: theory, foreign experience and problems of Russian law enforcement Правоприменение principle of proportionality balancing test constitutional responsibility constitutional violation constitutional court constitutional-legal disputes conflict of constitutional values right to vote |
| title | The principle of proportionality of constitutional responsibility of elected officials: theory, foreign experience and problems of Russian law enforcement |
| title_full | The principle of proportionality of constitutional responsibility of elected officials: theory, foreign experience and problems of Russian law enforcement |
| title_fullStr | The principle of proportionality of constitutional responsibility of elected officials: theory, foreign experience and problems of Russian law enforcement |
| title_full_unstemmed | The principle of proportionality of constitutional responsibility of elected officials: theory, foreign experience and problems of Russian law enforcement |
| title_short | The principle of proportionality of constitutional responsibility of elected officials: theory, foreign experience and problems of Russian law enforcement |
| title_sort | principle of proportionality of constitutional responsibility of elected officials theory foreign experience and problems of russian law enforcement |
| topic | principle of proportionality balancing test constitutional responsibility constitutional violation constitutional court constitutional-legal disputes conflict of constitutional values right to vote |
| url | https://enforcement.omsu.ru/jour/article/view/439 |
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