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The decision of the Constitutional Court of the Russian Federation from May, 13th, 2004 N 10 - P on the case of check of constitutionality of a part of second article 16 of the Law of the Pskov area About protection of the population and territories against emergency situations of natural and technogenic character in connection with inquiry of Administration of the Pskov area

the Name of the Russian Federation

the Constitutional Court of the Russian Federation as a part of chairm V.G.Yaroslavtsev, judges N.S.Bondarja, G.A.Gadzhiev, A.L.Kononova, L. O.Krasavchikovoj, Ju.D.Rudkina, A.Ja.Slivy, V.G.Strekozova, B.S.Ebzeeva,

with participation of representatives of the party which have converted into the Constitutional Court of the Russian Federation with inquiry, - the assistant to the head of administration of the Pskov area D. V.Shahova and the doctor of jurisprudence S. V.Vasileva,

being guided by article 125 (point Parts 2) Constitutions of the Russian Federation, the subparagraph point 1 of a part of the first, parts of third and fourth article 3, the subparagraph point 1 of a part of second article 22, articles 36, 74, 84, 85 and 86 Federal constitutional laws About the Constitutional Court of the Russian Federation

has considered in a public meeting case about check of constitutionality of a part of second article 16 of the Law of the Pskov area About protection of the population and territories against an emergency situation of natural and technogenic character .

the Occasion to a legal investigation was the inquiry of Administration of the Pskov area about check of constitutionality of the position containing regarding second article 16 of the Law of the Pskov area from January, 6th, 1997 About protection of the population and territories against emergency situations of natural and technogenic character (designated in the presented materials as the paragraph of fourth article 16). The basis to a legal investigation was the found out uncertainty of a question on, a leah corresponds to the Constitution of the Russian Federation the challenged position recognised as courts of law contradicting federal legislation, invalid and not subject to application.

Having heard the message of the judge - lecturer B.S.Ebzeeva, an explanation of representatives of the party which have made an inquiry in the Constitutional Court of the Russian Federation, the indication of the witness - the assistant to the head of administration of the Pskov area V.A.Komissarova, performance of the plenipotentiary of the Federation Council in the Constitutional Court of the Russian Federation of Ju.A.Sharandina and the Constitutional Court of the Russian Federation invited in session of the representative of the Ministry of the Russian Federation on civil defence affairs, emergency situations and liquidation of acts of nature JU. Shpakovsky, having investigated the presented documents and other materials, the Constitutional Court of the Russian Federation

has established:

1. The Pskov regional court from January, 22nd, 2002 has satisfied with the decision the statement of the assistant to the General public prosecutor of the Russian Federation for a recognition contradicting the federal legislation, a part of second article 16 of the Law of the Pskov area invalid and not subject to application About protection of the population and territories against emergency situations of natural and technogenic character according to which chiefs of controls on affairs of civil defence and emergency situations are assistants to heads of corresponding enforcement authorities. The Pskov regional court also recognised as contradicting the federal legislation, void and not generating legal consequences from the date of the edition point 8 of Position on Central administrative board on affairs of civil defence and emergency situations of the Pskov area (it is confirmed by the decision of Administration of the Pskov area from August, 28th, 2000), establishing that the chief of Central administrative board on affairs of civil defence and emergency situations of the Pskov area is the assistant to the head of administration of the Pskov area on a post, is appointed to this post and is released from this post by the order of the head of administration of the Pskov area in coordination with the Minister of the Russian Federation of civil defence affairs, emergency situations and liquidation of consequences of acts of nature. The judicial board on civil cases of the Sovereign Court of the Russian Federation from April, 4th, 2002 has left definition the appeal of Administration of the Pskov area without satisfaction, and the decision of the Pskov regional court - without change.

In the inquiry in the Constitutional Court of the Russian Federation the Administration of the Pskov area asserts that articles 71 and 72 Constitutions of the Russian Federation do not carry formation of enforcement authorities of subjects of the Russian Federation neither to conducting the Russian Federation, nor to joint conducting the Russian Federation and its subjects in this connection this point in question was subject to the permission on the basis of articles 73 and 76 (a part 4) to the Constitution of the Russian Federation, in which force out of limits of conducting the Russian Federation and joint conducting the Russian Federation and its subjects subjects of the Russian Federation carry out own legal regulation; this conclusion will be co-ordinated with article 21 of the Federal law About the general principles of the organisation legislative (representative) and executive powers of the government of subjects of the Russian Federation establishing that the supreme body of executive power of the subject of the Russian Federation forms other enforcement authorities of the subject of the Russian Federation.

According to the applicant, position of a part of second article 16 of the Law of the Pskov area About protection of the population and territories against emergency situations of natural and technogenic character on which basis the chief of Central administrative board on affairs of civil defence and emergency situations of the Pskov area has been appointed to the post the assistant to the head of administration of the Pskov area, it is accepted within the competence of the Pskov area as subject of the Russian Federation, does not contradict the Constitution of the Russian Federation and is subject to action contrary to the decisions accepted by courts of law.

Thus, a subject of consideration of the Constitutional Court of the Russian Federation on the present business the part the second articles 16 of the Law of the Pskov area " is; About protection of the population and territories against emergency situations of natural and technogenic character according to which chiefs of controls on affairs of civil defence and emergency situations are assistants to heads of corresponding enforcement authorities, in a part, concerning vestings of the chief of Central administrative board on affairs of civil defence and emergency situations of the Pskov area the status of the assistant to the head of administration of the Pskov area, - both under the maintenance, and from the point of view of established by the Constitution of the Russian Federation of differentiation of subjects of conducting and powers between public authorities of the Russian Federation and public authorities of subjects of the Russian Federation.

Thus according to article 74 of the Federal constitutional law About the Constitutional Court of the Russian Federation considered position of the Law of the Pskov area About protection of the population and territories against emergency situations of natural and technogenic character is subject to an estimation taking into account its place in system of legal certificates of the Pskov area, and also in interrelation with the positions of the federal legislation supposing creation by enforcement authority of the subject of the Russian Federation of special representatives of bodies which functions are covered by sphere of joint conducting the Russian Federation and its subjects and to which the duties following from subjects of conducting of the Russian Federation are assigned.

2. According to the Constitution of the Russian Federation the federal device of the Russian Federation is based on its state integrity, unity of system of the government (article 5, a part 3); Federal enforcement authorities and enforcement authorities of subjects of the Russian Federation as a part of uniform system of the government within conducting the Russian Federation and powers of the Russian Federation in subjects of joint conducting the Russian Federation and its subjects also form uniform system of executive power in the Russian Federation (article 77, a part 2). Subjects of the Russian Federation, independently establishing by acceptance of own standard legal certificates system of public authorities and their power, should start with bases of the constitutional system, the general principles of the organisation representative and government executive powers (article 72, point n parts 1; article 77, a part 1), from other positions of the Constitution of the Russian Federation, federal laws concretising them and other standard legal certificates of federal public authorities.

From this including follows that the regulation which is carried out by the legislator of the subject of the Russian Federation in the field, should be based on fixed by the Constitution of the Russian Federation principles of the federal device and differentiation of subjects of conducting and powers between public authorities of the Russian Federation and public authorities of subjects of the Russian Federation. So, on sense of article 71 of the Constitution of the Russian Federation in interrelation with its articles 11, 76, 77 and 78, by laws and other standard legal certificates of subjects of the Russian Federation cannot be passed, excluded or otherwise be redistributed established by the Constitution of the Russian Federation subjects of conducting the Russian Federation and power of federal enforcement authorities. Thus public authorities of subjects of the Russian Federation participate in the corresponding relations having obshchefederalnoe value, in that measure and so far as in what and as such participation is provided and it is supposed by federal laws, other standard legal certificates of federal public authorities.

2. 1. According to the Constitution of the Russian Federation, its article 71 (point m ) Defence, including civil defence, is in conducting the Russian Federation. Defining the duties, assigned in this sphere on public authorities of subjects of the Russian Federation, the Federal law from May, 31st, 1996 About defence establishes, in particular, that enforcement authorities of subjects of the Russian Federation in interaction with bodies of military management within the competence will organise and provide execution of the legislation in the field of defence (subparagraph 1 of point 1 of article 7).

According to the Federal law concretising named position from February, 12th, 1998 About civil defence the management of civil defence in the Russian Federation carries out the Government of the Russian Federation, a management of civil defence in territories of subjects of the Russian Federation - heads of enforcement authorities of subjects of the Russian Federation (article 11). Thus enforcement authorities of subjects of the Russian Federation do not carry out independent regulation of relations in the field of civil defence, - their activity is in the field caused by a duty to observe the Constitution of the Russian Federation and federal laws (article 15, a part 2, Constitutions of the Russian Federation) which reveals in certificates of federal public authorities, and the civil defence defined by the Federal law About civil defence as the system of actions for preparation for protection and on protection of the population, material and cultural values in territory of the Russian Federation from the dangers arising at conducting of military operations or owing to these actions (article 1), with necessity assumes interaction of federal enforcement authorities and enforcement authorities of subjects of the Russian Federation in the decision of problems of civil defence in the Russian Federation.

Realization of measures on struggle against accidents, acts of nature, epidemics, the Constitution of the Russian Federation carries liquidations of their consequences - unlike civil defence - to joint conducting the Russian Federation and its subjects (article 72, point z parts 1). Opening the maintenance of the given subject of conducting and differentiating powers of the Russian Federation and its subjects in this sphere the Federal law from December, 21st, 1994 About protection of the population and territories against emergency situations of natural and technogenic character fixes the general for the Russian Federation organizational - rules of law in the field of protection of the population and territories against emergency situations of natural and technogenic character and establishes corresponding powers of subjects of the Russian Federation and organizational forms of their realisation. In particular, according to article 11 of the named Federal law public authorities of subjects of the Russian Federation create at enforcement authorities of subjects of the Russian Federation constantly operating controls, special representatives on the decision of problems in the field of protection of the population and territories against emergency situations.

the Combination and interaction of functions and mission of civil defence and measures on struggle against accidents, acts of nature, epidemics, and also on liquidations of their consequences, unity of the constitutional purposes and protected values which are predetermined by the constitutional duty of the state, all bodies of the public power to protect the person, its rights and freedom as supreme value, and also to provide security of the person, a society and the state, preservation of the environment and ecological security (article 2; article 71, point in ; article 72, point d Parts 1, Constitutions of the Russian Federation), cause unity of a state policy in the field of civil defence, protection of the population and territories against emergency situations of natural both technogenic character and creation of uniform state system of bodies, special representatives to solve corresponding problems. This system is headed by the Government of the Russian Federation which co-ordinates activity on prevention of acts of nature, failures and accidents, to reduction of their danger and liquidation of their consequences, supervises over civil defence (the paragraph of fifth article 18, the paragraph of seventh article 20 of the Federal constitutional law About the Government of the Russian Federation ) Includes also enforcement authorities of subjects of the Russian Federation and created on the basis of federal laws About civil defence About protection of the population and territories against emergency situations of natural and technogenic character and according to Position about uniform state system of the prevention and liquidation of emergency situations (it is confirmed by the governmental order of the Russian Federation from December, 30th, 2003 N 794) constantly operating controls, special representatives on the decision of problems of civil defence and protection of the population and territories from emergency situations.

Thus, the operating legal regulation based on unity of the state system of the prevention and liquidation of emergency situations, does not attract redistribution of subjects of conducting the Russian Federation and powers of the Russian Federation in subjects of joint conducting the Russian Federation and its subjects as they are established by articles 71 and 72 Constitutions of the Russian Federation, is directed on achievement of appropriate coordination of activity of bodies making these system, and fixed by it an order of formation and the competence of constantly operating controls, special representatives on the decision of problems grazhdanskoj defences and protection of the population and territories against emergency situations, their interaction with federal public authorities and public authorities of subjects of the Russian Federation assume performance of problems facing specified public authorities in the constitutional limits of their powers.

2. 2. The rights and duties of constantly operating controls, special representatives on the decision of problems of civil defence and protection of the population and territories from emergency situations in subjects of the Russian Federation, are defined according to federal laws being in system unity About civil defence and About protection of the population and territories against emergency situations of natural and technogenic character Position about uniform state system of the prevention and liquidation of emergency situations, and also follow from the Federal law About the general principles of the organisation legislative (representative) and executive powers of the government of subjects of the Russian Federation which carries to powers of public authorities of subjects of the Russian Federation in subjects of joint conducting the Russian Federation and its subjects the prevention of emergency situations of intermunicipal and regional character, acts of nature, epidemics and liquidation of their consequences (subparagraph 5 of point 2 of article 263).

These bodies are included into system of the Ministry of the Russian Federation on civil defence affairs, emergency situations and liquidation of consequences of acts of nature (article 12 of the Federal law About protection of the population and territories against emergency situations of natural and technogenic character and a part the first articles 13 of the Federal law About civil defence ) Exercise administration of civil defence in territories of subjects of the Russian Federation and are created or, according to the Federal law About civil defence as agreed between it and subjects of the Russian Federation (article 12 point 2), or, according to the Federal law About protection of the population and territories against emergency situations of natural and technogenic character at enforcement authorities of subjects of the Russian Federation (the subparagraph and Article 11 point 1), are completed with military men of armies of civil defence, means for which maintenance are allocated from the federal budget, and the civil personnel, means for which maintenance are allocated from budgets of subjects of the Russian Federation, and co-operate with the head of enforcement authority of the subject of the Russian Federation on whom the management of civil defence is assigned to territories of the subject Russian Federations (point 3 of article 11 and point 2 of article 12 of the Federal law About civil defence ) .

Established by the named federal laws and on their basis - other certificates of public authorities of the Russian Federation an order of formation of acquisition and definition of the status of bodies, special representatives to solve problems of civil defence, a problem under the prevention and liquidation of emergency situations, does not exclude participation of public authorities of subjects of the Russian Federation in the limits provided by federal public authorities in definition of the status of heads of these bodies.

Forms and ways of such participation can be various and are predetermined by differentiation of subjects of the conducting, fixed by the Constitution of the Russian Federation. In particular, on sense of article 72 of the Constitution of the Russian Federation the subject of the Russian Federation has the right to carry out independently within the competence regulation of corresponding relations only in sphere of joint conducting the Russian Federation and its subjects. Hence, the Constitution of the Russian Federation does not interfere in the limits established by the federal law with participation of the subject of the Russian Federation in regulation of the status of body, the special representative on realisation of measures on struggle against accidents, acts of nature, epidemics, liquidations of their consequences, and the status of its head.

As to civil defence the subject of the Russian Federation, participating in the given relations in that measure and so far as in what and as it is provided and it is supposed by federal laws, other legal certificates of federal public authorities, have the right to provide ways of the effective decision of the problems assigned to it in the field of the civil defence which management in territory of the subject of the Russian Federation is carried out by the chief executive of the subject of the Russian Federation, on a post being the chief of civil defence of the subject of the Russian Federation, including investment of the chief of constantly operating controls, the special representative to solve problems in the field of civil defence, problems under the prevention and liquidation of emergency situations, - the deputy chief of civil defence of the subject of the Russian Federation the status also the assistant to the chief executive of the subject of the Russian Federation.

Thus, being a consideration subject on the present business position of article 16 of the Law of the Pskov area About protection of the population and territories against emergency situations of natural and technogenic character in itself it can not be qualified as intrusion of the subject of the Russian Federation into regulation of the federal public service carried by the Constitution of the Russian Federation to conducting of the Russian Federation, or into powers of the Russian Federation on an establishment of the general principles of the organisation of system of public authorities and the local government, being in joint conducting the Russian Federation and its subjects (article 71, point t ; article 72, point n parts 1, Constitutions of the Russian Federation).

3. Heads of constantly operating controls, special representatives to solve problems of civil defence, a problem under the prevention and liquidation of emergency situations in subjects of the Russian Federation, are appointed from among military men of armies of civil defence, pass military service in the specified bodies and on a post are assistants to chiefs of civil defence of subjects of the Russian Federation (article 11 point 3, article 12 point 2, point 3 of article 16 of the Federal law About civil defence ) . From this it follows that they as military men of armies of civil defence have the status established to execute requirements of article 76 (a part 1) Constitutions of the Russian Federation federal laws About a conscription and military service and About the status of military men with features which are defined by federal laws About civil defence and About protection of the population and territories against emergency situations of natural and technogenic character other certificates of federal public authorities, including Position about Armies of civil defence of the Russian Federation, the confirmed Decree of the President of the Russian Federation from May, 27th, 1996 N 784 Questions of civil defence of the Russian Federation (in edition from August, 5th, 2002).

In particular, provided by the Federal law About the status of military men Restrictions for military men concerning activity which is not caused by performance of duties on preparation for the armed protection and the armed protection of the Russian Federation (the paragraph of article 1 second point 2, points 7 and 8 articles 10), taking into account purpose of armies of the civil defence, the organisation of civil defence and the prevention and liquidation of emergency situations, character of interaction with enforcement authorities of subjects of the Russian Federation in itself do not interfere with investment of the military man passing military service as the head of constantly operating controls, the special representative to solve problems in the field of civil defence, problems under the prevention and liquidation of emergency situations, the status of the assistant to the head of enforcement authority of the subject of the Russian Federation up to a point it is carried out by the subject of the Russian Federation with observance of requirements, Following from the Constitution of the Russian Federation and federal laws, and in coordination with federal enforcement authority, the special representative to solve problems in the field of civil defence, protection of the population and territories against emergency situations.

4. Investment of the chief of Central administrative board on affairs of civil defence and emergency situations of the Pskov area - the military man of armies of civil defence the status of the assistant to the head of administration of the Pskov area cannot mean, however, execution by it in full powers which are provided or can be provided concerning the assistant to the head of administration of the Pskov area the Charter of the Pskov area, laws and other standard legal certificates of the Pskov area. The volume and kinds of powers assigned to it can be connected, in particular, with assistance to the head of administration of the Pskov area in realisation of its function on a management of civil defence in territory of the Pskov area, and also with realisation of measures on struggle against accidents, acts of nature, epidemics and liquidation of their consequences and coordination of activity of bodies of the public power, the organisations and their officials in the specified spheres within the constitutional powers of the subject of the Russian Federation as it is established by Federal laws About protection of the population and territories against emergency situations of natural and technogenic character (article 11), About under abnormal condition - life-saving services and the status of rescuers (articles 14 and 18), About fire security (Article 18), Position about uniform state system of the prevention and liquidation of emergency situations (point 10), other certificates of federal public authorities and certificates of public authorities of subjects of the Russian Federation corresponding to them.

Meanwhile according to the Charter of the Pskov area the post of the assistant to the head of administration of the Pskov area is the state post (article 42) purpose on which is carried out by the head of administration of the Pskov area (article 43), and in cases when the head of administration of the Pskov area cannot fulfil the duties, they are executed temporarily by one of its assistants according to in writing issued distribution of duties between them in full, except for the powers provided by points in g d articles 43 of the given Charter. However the named positions cannot be interpreted as supposing putting on on the chief of Central administrative board on affairs of civil defence and emergency situations of the Pskov area - the assistant to the head of administration of the Pskov area of duties which do not correspond to the nature of its post or functions of the body headed by it, established on the basis of the Constitution of the Russian Federation by federal laws to regulation of bases of public service of the Russian Federation and its system, and also the status of the military man and which are not caused by necessity of coordination of activity of bodies of the public power, the organisations and their officials for the decision of problems of civil defence, problems under the prevention and liquidation of emergency situations. From here also follows that clearing of a post of the assistant to the head of administration of the Pskov area, carried out by the head of administration of the Pskov area (article 43 of the Charter of the Pskov area), in itself does not mean simultaneously clearing of a post of the chief of Central administrative board on affairs of civil defence and emergency situations of the Pskov area.

Thus, a part the second articles 16 of the Law of the Pskov area About protection of the population and territories against emergency situations of natural and technogenic character According to which chiefs of controls on affairs of civil defence and emergency situations are assistants to heads of corresponding enforcement authorities, in a part, concerning vestings of the chief of Central administrative board on affairs of civil defence and emergency situations of the Pskov area the status of the assistant to the head of administration of the Pskov area, estimated taking into account operating federal legal regulation, does not contradict the Constitution of the Russian Federation both under the maintenance, and from the point of view of differentiation of subjects of conducting and powers between public authorities of the Russian Federation and public authorities of subjects of the Russian Federation as such investment does not attract putting on on the specified person of the duties which have been not connected with the organisation of civil defence and protection of the population and territory from emergency situations of natural and technogenic character or coordination of activity of bodies of the public power, The organisations and their officials in corresponding spheres, it is compatible to the status of the military man of armies of civil defence and responds the nature of the given post.

Proceeding from stated and being guided by parts of first and second article 71, articles 72, 75, 79, 86 and 87 Federal constitutional laws About the Constitutional Court of the Russian Federation the Constitutional Court of the Russian Federation

has decided:

1. To recognise a part the second articles 16 of the Law of the Pskov area About protection of the population and territories against emergency situations of natural and technogenic character According to which chiefs of controls on affairs of civil defence and emergency situations are assistants to heads of corresponding enforcement authorities, in a part, concerning vestings of the chief of Central administrative board on affairs of civil defence and emergency situations of the Pskov area the status of the assistant to the head of administration of the Pskov area which are not contradicting the Constitution of the Russian Federation as such investment does not attract putting on on the specified person of the duties which have been not connected with the organisation of civil defence and protection of the population and territories from emergency situations of natural and technogenic character or coordination of activity of bodies of the public power, organisations and their officials in corresponding spheres, is compatible to the status of the military man of armies of civil defence and responds the nature of the given post.

2. According to parts of first and second article 79 of the Federal constitutional law About the Constitutional Court of the Russian Federation the present Decision is definitive, is not subject to the appeal, comes into force immediately after intoning, operates directly and does not demand acknowledgement by other bodies and officials.

3. According to article 78 of the Federal constitutional law About the Constitutional Court of the Russian Federation the present Decision is subject to immediate publication in, Meeting of the legislation of the Russian Federation and official publications of public authorities of the Pskov area. The decision should be published also in the Bulletin of the Constitutional Court of the Russian Federation .

the Constitutional Court
the Russian Federation