The Institute of Precedent

Legal issues: 1) whether regional legislator, proceeding from the budget opportunities of the region and with due regard to federal legislation, may establish or abolish tax benefits, in particular for pensioners? 2) whether the Constitutional Court of Russia may overcome a decision of a regional charter court, by which the contested rule has been deemed non-conformant to the charter (or constitution) of the region?

Ratio decidendi: the change in legal regulation of a tax benefit made by regional legislator within its discretionary powers may not be regarded as a belittlement of the constitutionally conditioned degree of social protection of pensioners and violation of their property rights. Thus, the contested rule does not violate the prescription of the Constitution concerning the lawful imposition of taxes and dues and does not contradict the Constitution; 2) a normative legal act of a region, related to the issue which falls within the competence of the Russian Federation or joint competence of the Russian Federation and its regions, may be reviewed by the Constitutional Court of Russia as regards the conformance of such act to the federal Constitution upon the requests from the bodies and persons listed in Art 125 (part 3) of the Constitution, if the latter believe that such act is to have legal force, contrary to an official decision of highest bodies of State power of the respective region; this legal opinion has already been expressed by the Constitutional Court (rulings of 27 December 2005 № 494-О and of 1 April 2008 № 194-О-П). The absence of such power in the hands of the Constitutional Court would mean – in violation of Art 125 (part 2) of the Russian Constitution – the exemption from the legal system of the Russian Federation of those normative acts which were adopted by the regions with regard to the issues of joint competence and, consequently, their exemption from the ambit of Constitutional Court’s review. If, after all, the Constitutional Court deems such act to be non-contradicting the Constitution, it retains legal force.

Gadzhiev Gadis

The contested rule had lost its force long before the adoption of the Constitutional Court judgment, by virtue of the decision of the Charter Court of Chelyabinsk region, and the Constitutional Court ought not therefore admit the issue to consideration; the review of constitutionality of an act, which has lost legal force, is possible only in the event of violation by it of citizens’ constitutional rights and freedoms, which was not the case here; the decision of a charter court of a region, by which an act is invalidated, is final and should not be overcome by a decision of another court; the review exercised by a charter court has another standard, as compared with the review performed by the Constitutional Court of Russia; the problems which may be raised by citizens before the regional bodies of constitutional review often reflect the social and economic settings characteristic of a particular region and may be better solved by the bodies which are in the maximum proximity to them; based on the fact that in the charter (or constitution) of a region a higher level of social protection may be found, a difference in assessment can be objectively justified: a provision of regional law may be non-conformant to higher criteria of charter (constitution) of that region and at the same time not to contradict the Constitution of the Russian Federation, and such situation should not necessarily be regarded as a fundamental and material breach of the requirements of the Russian Constitution; in this particular case the Charter Court of Chelyabinsk Region articulated a universal legal position, which essentially means that even in the event of repealing tax benefits the legislator must give it a constitutional legal justification; the decision was delivered by the Charter Court within its competence and as such ought to be respected by the Constitutional Court; it was necessary to find a compromising solution, which would reflect the conclusions of both high courts.

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The Institute of Precedent

Judgment of the Constitutional Court of 2 December 2013 № 26-П on the review of constitutionality of paragraph 2 Article 4 of the Law of Chelyabinsk Region “On the Transportation Tax” upon request of the Legislative Assembly of Chelyabinsk Region

Dissenting opinion: