The core of judicial protection of human rights lies in the constitutional complaint, since:

- Human rights are attributes of any democratic legal system;
 
- Constitutional complaint is (only) one of the legal remedies for protecting constitutions rights;
 
- Constitutional complaint is an important remedy for the protection of human rights and can be considered a human right itself¹⁹⁵; the Constitution guarantees the constitutional complaint, in the same way as the rights it protects; at the same time, the constitutional complaint is limited by statute to the operational capacity of the Constitutional Court;

- Its effectiveness is disputed, since successful constitutional complaints are in a clear minority, although that should be no reason for its restriction or abolition. Such a number of unsuccessful constitutional complaints is also very often the result of the great number of the same kind of cases filed before the Constitutional Courts;

However, despite the internal contradictory properties of this institution, individuals should still have access to justice or to the judicial protection of their constitutional rights. The very existence of the constitutional complaint ensures a more effective review of violations of constitutional rights on the part of government bodies, especially during the process of transformating the social and legal order.

Comparative analysis enables us not only to uncover the basic nature of the individual forms of constitutional review, but also to pose the question on the optimal combination of those forms. It is shown that the specialized institutes implement the constitutional review in differing ways. Also differing are the character, review procedure, harmonic arrangement of its individual forms and details of their realization.

The conceptual differentiation of the preliminary and ex post facto review performed by a special body of constitutional review is also based on factors beside the temporal ones. This differentiation has an informative scope. The Preliminary review assumes that the regulation becomes the object of constitutional review prior to being enacted with the purpose of possible anti-constitutional situations. The two possible options here are as follows: one - the object of constitutional review is a draft regulation, two - a regulation already adopted but not yet signed or entered into legal force.

The first option is most characteristic for the so-called Franco-European model. A characteristic feature of the Constitutional Council of France is a mandatory preliminary review of the draft organic laws.

A characteristic example of constitutional review of regulations within the intermediate stage is Romania. The constitutional review in that country is done at the time when it has been adopted by the Parliament but not yet signed by the President or validated.

The Constitution of Romania (Art. 145) provides that if a law is qualified by the Constitutional Court as unconstitutional, it has to be returned to the Parliament for additional debate. A repetitive approval of the law in the same reading will require at least a 2/3 majority in both Houses.

Article 145. Decisions of the Constitutional Court

(1) In cases of unconstitutionality, in accordance with Article 144 subparagraphs a) and b), the law or standing orders shall be returned for reconsideration. If the law is passed again in the same formulation by a majority of at least two thirds of the members of each Chamber, the objection of unconstitutionality shall be removed, and promulgation thereof shall be binding.

(2) Decisions of the Constitutional Court shall be binding and effective only for the future. They shall be published in the Official Gazette of Romania.

In a number of countries the preliminary review is effected with regard to the Rules of Procedure of Chambers, so that through the law there should not be a violation of constitutional balance of separation of powers. Prior to forming specialized bodies of constitutional review their function had been effected exclusively with regard to the validated regulatory acts. The purpose of the ex post facto review is to ensure the constitutionality of legal regulations at all stages of their application. A similar task can emerge not only in the case when the subject of examination is some infraction, but also in the case when the subjects having the right to appeal to the Constitutional Court will need to inspect the constitutionality of a specific legal act or its individual provisions.

A peculiar feature of the American system of constitutional review in this regard is that the ex post facto review is effected by all courts only when examining specific cases, so that the decisions concern the subjects of particular legal relations, i.e. the parties to the case under examination. Nevertheless, each precedent has a substantial meaning for future examination of these cases.

The European system of ex post facto review has a feature suggesting both the presence and absence of timing restrictions. E.g., on issues associated with referendum results, the Constitutional Court can be appealed within one month (in Armenia 7 days) after the official publication of results.

While at the time of preliminary review mainly individual branches of authority interact, the ex post facto review embraces nearly all strata of society enabling the opportunity to most profoundly consider the features of law-enforcement practice.

That often becomes a legislative requirement as well. For example, Article 67 of the RA Constitutional Court Act provides: With regard to issues determined by Points 1 and 2 of Article 100 of the Constitution a decision shall be adopted based both on the literal meaning of the Act and existing judicial practice.

The principal mission of the ex post facto review is to ensure the stability of continually variable public relations.

In its character constitutional review can be concrete and abstract. The concrete review constitutes the basic concepts of the American system of constitutional review assuming that the constitutionality of a regulation is associated with a specific case that has become a subject of judicial inquiry. In many European countries, particularly having a system of individual complaints, the constitutional review is also implemented as concrete review.

The concrete review is mainly characterized by the following features:
- review is stipulated by the examination of a specific case;
- the decision on constitutionality of a legal act is extended to the subjects of law, relevant to the particular case;
- the issue of protecting the individual interests is advanced to the foreground;
- the functional relations between ordinary courts and the bodies of constitutional review are clearly regulated.

It is known that abstract review is characteristic only for the European system of constitutional review. It assumes that the issue on constitutionality of a regulatory act can be put forward by a competent person provided by law, independent of whatever specific case.

In case of abstract review, as a rule, the subjects of appeal are bodies of state authority. However, in some countries citizens can also apply not only on specific cases, but also as subjects of abstract review (Brazil, Malaysia). In Brazil, e.g., any citizen can apply to the body of constitutional review if he thinks that the law inflicts damage upon the national cultural heritage, environment or public dignity. In some European countries, where a citizen has the right to directly apply to the Constitutional Court on constitutionality of a regulatory act, there is also a functioning system of abstract review (Spain, Portugal). Incidentally, in Germany, the right of a citizen to apply on an issue of constitutionality is used both at the federal level, and at the level of Lands (Bavaria, Bedin, Hessen, Saar). In Germany, of all decisions by the Federal Constitutional Court adopted in 1953-1984, 82 were on abstract, 2200 on concrete applications. In Italy for the period of 1948 - 1976 those figures were 406 and 5761 respectively.

The role of abstract review acquires far greater importance at periods of systemic transitions, when the legislative system is actively being transformed, a new Constitution is being adopted or significant constitutional changes are being introduced. For the New Independent States of great importance are also the problems of integration and international public relations, as well as ensuring the constitutionality of international treaties.

Abstract review contains a large preventive charge, protecting the supremacy of the Constitution at all stages of preparing, adoption and application of regulatory acts. This form of review is becoming a guarantee of retaining the constitutional balance of separation of powers and ensuring its harmonically arranged activity.

One condition for an efficient resolution of this issue is a true selection of subjects appealing to the Constitutional Court within the framework of abstract review.

The objects of abstract review are also differentiated. Today considered classical may be a system of objects of abstract review, having the regulatory acts acceptable by all bodies of state authority.

International experience shows that each country has certain features of applying different forms of constitutional review. Some countries, like Turkey, dedicate particular attention the formal review. According to Art. 148 of the Turkish Constitution, the Constitutional Court examines the constitutionality of laws, decrees, having the force of law, and Rules of procedure of the Grand National Assembly of Turkey. The Constitutional Court cannot examine the constitutionality of the legal acts (decrees) adopted during a state of emergency, martial law, or at the time of war.

Verification as to the form may be requested by the President of the Republic or at least 1/5 members of the Grand National Assembly of Turkey. Applications and objections for annulment of legal acts based on formal deficiencies can be delivered up to 10 days since the enactment of the law.

To be recognized in specialized systems of constitutional review are the following characteristic features of applying different forms:

a) preference to a specific form (France, Romania, Kazakhstan prioritize the preliminary review, Germany, Spain, Austria, Portugal, Hungary, Russia, etc. favor the ex post facto review);
b) elimination of mandatory review in a substantial number of countries (e.g. Germany, Italy, Austria, Spain, Slovenia, Hungary, etc.);
c) differences in procedures of applying different forms (e.g., in Germany one cannot demand the oral hearing of cases on individual appeals, so that individual complaints can be submitted within a period of one month following the adoption of the disputed act or a judicial decision).
 
In France the objects of mandatory review are not only organic laws and standing orders of the Chambers, but also the laws on human rights and freedoms. As to the common laws, prior to their signing and promulgation, the President, Prime-Minister, Chair of National Assembly, Chair of the Senate, 60 deputies or 60 senators can appeal to the Constitutional Court within abstract elective review. It is typical that in France there is a substantial limitation of the capacity for the ex post facto and concrete constitutional review of regulatory acts on the part of the specialized body.

There are certain curious things in Portugal. In that country the Court has jurisdiction to hear appeals against any of the following judicial decisions of the ordinary courts:

a) a court decision on declining an appeal on unconstitutionality of a legal regulation;
b) a decision on altering a decision on constitutionality of a legal regulation, adopted through judicial proceedings;
c) a decision on rejecting by court an appeal on contradictions between ordinances and laws;
d) a decision on rejecting an appeal of a local body on a regulation contradicting a local or a republican law;
e) a decision on rejecting an appeal of a central body of authority on legality of a legal act by a regional body. The Constitutional Court is also competent to hear complaints against the courts' decision with regard to those decisions being unconstitutional or unlawful.

Based upon an appeal by the President prior to signing a law or ratifying an international treaty, the Constitutional Court of Portugal will determine the issue of their constitutionality. The principal feature (same as in Romania) is that the Parliament can confirm its own adopted act or regulation by 2/3 of the votes. A certain set of laws is established (in particular, on elections, referenda, the Constitutional Court, defence, emergencies, etc., that have to be adopted by a qualified majority) on the preliminary review of which the Constitutional Court can receive appeals from the Prime-Minister or 1/5 members. As to the ministers, they can appeal on the preliminary review of acts of regional legislation.

There are interesting features with regard to the procedural order in examining cases. On the issues of abstract review, the decisions are adopted at plenary court sessions, while on concrete review the examination and decisions are made by chambers counting 6 members. There is also a provision for the chair to transfer some specific case to a plenary session.

One of the substantial distinctions of constitutional review of Portugal is the functioning of the so-called mixed-type system, when the competence of determining the constitutionality of regulatory acts on specific cases also belongs to all courts of general jurisdiction. Meanwhile, their relevant decisions can be appealed to the Constitutional Court. A party may demand the transfer of the constitutionality decision to the Constitutional Court. In any case, the specific-case-related decisions extend only to the parties of a particular process.

The Constitutional Court also takes decisions on the relevance of mandates to laws. Commonly this type of review is concrete.

A major issue of constitutional review is the selection of a harmonic system of different forms of review. To this end, a full range of relative advantages and disadvantages of each form of review has to be identified. We shall primarily take a note on the advantages and disadvantages of preliminary (or preventive) and ex post facto (or final) forms of review.

The advantages of, the preliminary (preventive) form of review include:
1. Preliminary clarification of the constitutionality of a regulatory act, that enhances the reliability and stability of the legal system;
2. Facilitating a most efficient work of the legislator and enhancing his authority;
3. Preventing complications arising when a long-time law or an individual provision is recognized as unconstitutional;
4. Ensuring a final and authoritative decision on constitutionality of state-assumed international commitments prior to ratification of an international treaty and the assumption of such commitments by the state.

Possible defects of the preventive review:
1. Often the actual and probable after effects of the regulatory acts cannot be fully uncovered at an early stage. At first sight, a constitutionally-looking law or its individual provision when applied to actual life can behave as unconstitutional, when the issue is concerned with a collision of specific interests;
2. It is a difficult task to make a decision, especially the final, on constitutionality of a law (often containing hundreds of articles) within one or several weeks;
3. Both socio-economic and public conditions that had been the original destination of the law can undergo qualitative alterations resulting in the law being applied in an unconstitutional situation;
4. Preventive review of legal regulations can prevent a legislative body from a timely response to the adjustment of many relations, particularly if filing a case in the Constitutional Court will suspend the law prior to the Court's decision.

Those defects can be overcome by combining the two forms of review. It seems to be a mistake to seek the solution in one or the other extreme, selecting one form and rejecting the other. It is very important to realize a positive intrinsic potential of each one form. In view of the fact that basically a negative attitude is manifested with regard to the preventive review, the following is to be noted:

1. It is unambiguous that the Rules of procedure of the Parliament chambers is subject to mandatory preventive review.
2. Preventive review should be done following the Parliament's adoption of the law prior to its signing and its enactment.
3. Standing out as subjects of preventive review appealing the Constitutional Court can be at least 1/5 of the members of the Parliament, the President and the Government.
4. The Constitutional Court, in cases provided by the law, must have the right to review its decisions taken as preventive review.

To be particularly noted is the fact that in emergencies of a transitional period, prevention of possible negative manifestations are more important than tracing their consequences. Of a special importance in this regard is the preventive review.

Combinations of different forms generates new problems. E.g., the entity of constitutional review can, in the way of preventive review, recognize the law as constitutional, however, further on, in case of a concrete review, appear in an unconstitutional situation. It follows that the framework of the preventive and ex post facto review have to be clarified in advance.

As noted, it is important to choose the timing of constitutional review prior to the legislator's decision or following it. In the latter case, the advantage is that, a) the legislator can eliminate defects himself, and b) the Constitutional Court will not interfere with law making. Otherwise parliamentary debate becomes targeted, and the legislator gets the possibility to avoid adopting the unconstitutional regulations. Meanwhile, this form will change the functional role of the Court, and in this regard it would be desirable to maximally diminish the frame of reviewing the not-adopted act.

When examining the issue of constitutionality of laws, it is extremely important to take into account the following circumstances:
- what category of regulations are subject to review;
- who is competent to appeal to the Constitutional Court and on what grounds;
- in what way is the case examined: is the appellant present or not;
- who and what institutes beside the appellant can take part in the hearing and plead before the court;
- within what limits will the Constitutional Court consider the issue: only the challenged regulation or the act in its entirety;
- what is to be the form, structure and character of a decision by the Constitutional Court.

All those questions have to be determined in advance and registered in the Constitutional Court Act, that has to be an organic or constitutional law.

In this regard it is very important to have a distinct procedural order of examining the issues of constitutionality of regulatory acts. Many countries have resolved this issue by making special Laws on constitutional procedure. The prevailing view is that Constitutional Courts have to develop and approve this Rules of Procedure, naturally, within the competence provided by the Constitution.

One of the issues still subject to disagreement: what is to be done when an unconstitutional situation is emerging through failure by a body of the state power in its constitutional responsibilities (or failing to fulfil them in time), or through failure to adopt a relevant legislative act at an appropriate time, rather than through failure to apply a specific regulation? In the Republic of Armenia, for example, this type of situation can emerge when the transitional provisions 7, 9, 10 of the RA Constitution Article 116 will not be fulfilled.

Situations of this type, also mainly typical for transitional periods, are not clearly formulated in nearly all countries. However, a practical procedure has been developed, when this issue is resolved by the Constitutional Court. Some experience in this regard has been accumulated by the Constitutional Courts of Portugal, Italy, Hungary¹⁹⁶. In an emerging situation of this kind, the subject appealing to the Constitutional Court, as a rule, happens to be either the President or the ombudsman, (if any).

For the New Independent States it is necessary that this issue become the target of mutually agreed action of all branches of power. In particular, the Republic of Armenia, to avoid similar situations and to accomplish the operations provided by the transitional provisions of the Constitution, opted for the so-called "anticipatory" way. A decree by the RA President based on part 1 of Art. 49, Constitution, established a state commission on the judiciary-legal reform, including the representatives of legislative, executive and judicial authority. Without this type of cooperation, the solution of such problems can face a deadlock.

There is another problem typical for the transition period. That is, on one hand, a legal vacuum, on the other hand, the inherent contradictions in the legislation. E.g., in Russia, by expert evaluation, 70 percent of federal laws contain unconstitutional provisions¹⁹⁷. Most New Independent States are in a similar situation. The experience of constitutional review in Armenia shows that the principal role belongs to the evaluation of law-enforcement procedures.

Let us conside a few specific examples. During its lifetime (1996 - 1998), the Constitutional Court of the Republic of Armenia examined over 150 cases including those on determining the constitutionality of laws, international treaties, disputes on electing the President of the Republic. The subjects of appeal to the Constitutional Court were the President of the Republic, one third of the Representatives in the National Assembly, candidates to the President of the Republic.

The cases taken up for examination by the Constitutional Court, mainly concerned the international treaties of the Republic of Armenia. The latter as noted, are the objects of mandatory preventive constitutional review. Three treaties (Agreement between RA and the Federal Republic of Germany on encouragement and mutual protection of investments, Agreement between the government of Armenia and the government of the Arab Republic of Egypt for the encouragement and protection of capital investment, Agreement between RA and Georgia on extradition of alleged criminals) have been recognized as unconstitutiolnal.

The Court ruled that in the first and second occasions the provisions of the agreements concerning the alienation of property, do not correspond to Article 28 of the RA Constitution, viz.: the provisions of item 2, Article 4 of the Agreement between the Republic of Armenia and the Federal Republic of Germany on encouragement and mutual protection of capital investments, providing the confiscation, nationalization or other actions that can be equivalent in effect to confiscation or nationalization of capital investment, are in contradiction to the condition of property alienation envisaged by Article 28 of RA Constitution, which states in particular: " The owner may be deprived of private property only by a court in cases prescribed by law. Private property may be alienated for the needs of society and the state only under exceptional circumstances, with due process of law, and with prior equivalent compensation", while according to the Agreement, the assessment and payment of compensation could be started not later than the moment of occurrence of confiscation, nationalization or other measures equivalent to the effect of confiscation or nationalization, that could not fully ensure a preliminary compensation.

In the actual constitutional review there are also many examples of examining cases on confiscation of property of specific subjects of law. E.g., in 4 cases the courts decided the issue on whether the confiscation of property was constitutional, in particular whether it was in conformity with the constitutional provisions on inviolability of property. In all the 4 cases the courts (Lithuania, 13. 12. 1993, 08. 04. 1997; the USA, 04. 03. 1996; Croatia, 30. 11. 1994) confirmed that the property confiscation imposed as an additional penalty, and directly associated with the committed criminal crime or administrative infraction, does not violate the constitutional property right which has its limitations.

Of certain interest is the mentioned decision of the US Supreme Court recognizing as rightful the confiscation of a vehicle that had been a joint property of the spouses and in which vehicle one of the spouses had perpetrated a crime, with no compensation to be made to the other spouse of this spouse's share of the automobile cost.

In both cases the Courts declined the examination of constitutionality of legal regulatory acts requiring the confiscation of property. The decision of the Constitutional Court of Czech Republic (08. 03. 1995) which recognized the ruling of 1945 on confiscation of property from the aggressor was recognized "at the moment of its publication not only lawful, but legitimate act". However, 40 years later, "it does not produce any more legal relationships", thereby making an examination of its constitutionality "devoid of any legal consequences". The Constitutional Court of Portugal (08. 10. 1996) did not examine essentially the issue of constitutionality of confiscating the firearms from persons having license for its use, since "there exists no constitutional right to bear arms".

In five cases the Courts (The European Court of Human Rights , 22. 02. 1994, 20.09.1994, 26.04.1995, 05.05.1995; the European Court of Justice, 27. 02. 1997), examining the specific cases related to confiscation of property, in criminal-legal or civil-legal way, have confirmed this measure to be in conformity with the Community law. Of certain interest here is the decision of the European Court of Human Rights (22. 02. 1994) on the Italian courts making use of property confiscation as preventive measure.

Pursuant to the decision of the European Court of Human Rights (09. 02. 1995), the retroactive action of the law demanding property compensation as an added criminal penalty, violates the principle that one cannot appoint a harsher penalty than the one that had to be applied at the moment of perpetrating the offence (Article 7.1 of the European Convention on Human Rights and Fundamental Freedoms).

In some cases the situation was dealing with the possibility of judicial complaint of the decisions on confiscation of property. E. g., in accordance with the decision of the Constitutional Court of Austria (02. 03. 1995), the property right includes the right to complaint and to reverse the decision on confiscation when the confiscated property failed to be subsequently used for public purposes provided by law. The US Supreme Court has reviewed a case when a defendant, entering a guilty plea with the prosecutor, in keeping with the American judicial tradition, pleaded guilty in committing a crime and agreed to his property being confiscated. The Supreme Court decided that in this case he declined the procedural right for a jury trial afforded to him by the federal criminal code, and the jury trial could decide, which part of his property was associated with his criminal activity and is subject to confiscation. The Constitutional Court of the Czech Repubiic (22. 06. 1995) confirmed the possibility for persons whose property had been confiscated by the decree of 1945, to file suits to courts on recovering their realty¹⁹⁸.

The cited examples show that not only the issues associated with alienation, but also with the property confiscation, often become subject of constitutional review, thus strengthening the guarantees of property rights has great significance in substantiation of the mechanisms of market economy.

Let us consider one more example on Armenia. While examining the constitutionality of the Agreement between the Govemment of the Republic of Armenia and the Government of the Arab Republic of Egypt on encouragement and protection of capital investments, the Constitutional Court established that not only elimination of investors’ property was not excluded on the part of the authorities, but also a possibility was admitted of not providing a compensation for the damages inflicted as a result (item 6, point 2, Article 4). Moreover, Article 5 of the same Agreement envisaged confiscation, nationalization or effecting other measures equivalent to the nationalization of investments in favor of the society, with regard to the inherent needs of one Party, with a stipulation of a rapid and equivalent compensation further on. The Agreement actually considered a possible expropriation in exceptional cases, no provision was made of a preliminary equivalent compensation, and the Parties only entered into commitments to implement further compensation with no meaningless delays.

In the case of the third agreement recognized as unconstitutional (Agreement between the Republic of Armenia and Georgia on extradition of alleged criminals), the Court ruled that:

- Item 1, Article 3 of the Agreement provides a denial of extradition in the case only if the person under extradition had been convicted by a special court of the appealing Party or is suable by such a court. That is for the case when Articie 92 of RA Constitution and Article 83 of Georgia's Constitution prohibit the establishment of special courts;

- The Agreement, according to its title, concerns the persons having committed crimes, however it will also comprise the relations concerned with extraditing the persons suspected in perpetrating the crimes (Articles 1, 2, 8, 9), which in the law enforcement practice can produce collisions or a violation of Article 41 of RA Constitution, stating the presumption of innocence;

- A significant divergence was discovered between the Armenian and Russian texts of the Agreement, particularly with regard to the established terms (Article 9).

Especially to be noted are the cases examined by the Court in connection with the constitutionality of regulatory acts with regard to established law enforcement practice. It should be mentioned that those cases had been very visible. One was on constitutionality of Article 17 of RA Election to the Bodies of Local Self-Govemment Act, the other was on provisions of Article 22 of RA Real Estate Act.

Regarded as basis for examining the first case was an appeal by 65 members of the RA National Assembly.

Pursuant to Articles 39, 40 and 57 of the RA Constitutional Court Act, a decision of the Constitutional Court recognized the RA National Assembly as a party to this case, the National Assembly being the body that had adopted the act being disputed in Court.

The appellant party found that the ordinary court decision on summarizing the second round of local self-government elections in Achapniak Region of Yerevan city'on 24 10. 1996 was appealed to the RA Supreme Court, as prescribed by Article 17 of RA Elections to Bodies of Local Self-Govemment Act which Supreme Court, within a specified period, in a collegial procedure, carried out the final decision that could not be protested by Prosecutor General to the Supreme Court Presidium, that had, in turn, cancelled the ruling.

The appellant party stated that the controversial enactment practice with regard to similar cases questioned the constitutionality of Article 17 of the relevant Act. Recognizing the relevance of the mentioned Article to the RA Constitution, the appellant party found that the Act has excluded the possibility of protesting the collegial decision of the Supreme Court.

The respondent party was also of the opinion that Article 17 of the Act in question conforms with the RA Constitution, noting at the same time that the fact of the finality of the collegial decision by the Supreme Court pursuant to Article 17 of the above Act is exclusively related to the appeal, while the constitutional competence of the prosecutor's office is to effect the supervision by protesting validated verdicts and decisions, having nothing to do with Article 17 of the Act mentioned.

The enactment practice of Article 17, RA Election to the Bodies of Local self-government Act has shown that the RA Supreme Court in a collegial setup (3 members) within 16. 12. 1996 to 12. 05. 1997 accepted for examination 41 complaints relevant to the courts' decisions on election to the bodies of local self-government. At each session when proclaiming the case-related decision, the Chair made announcements on the finality of the decision by the Supreme Court Board and on its being not subject to protesting or appeal.

Among 41 similar decisions adopted by the judicial board of RA Supreme Court, the Prosecutor General protested only the above-mentioned decision within a supervisory procedure, meanwhile between 16.12.1996 to 12.05.1997 the RA Prosecutor's Office received 11 complaints on similar cases, which had been examined by courts, of which 2 received answers that, according to Article 17 of the RA Election to the Bodies of Local self-government Act, the collegial solution by the Supreme Court is final and is not subject to protesting through supervisory procedure.

The Constitutional Court remarked that while making use of Article 17 of RA Election to the Bodies of the Local self-government Act a controversial and multifarious approach was shown to the regulations of this Article with regard to the constitutional provisions registered in Articles 5, 39, 103, 110, items 7, 12, 13 of Article 116, as well as to the statements of chapters 23, 34, 35, 36 of the Civil-Procedural Code.

No coherent approach was shown to the issue that the electoral legislation regulates the state and legal relationships targeted at establishing, within the present time-frame, of the electoral institutes of power in the Republic pursuant to the observance of Articles 2, 3, 27, 50, 51, 68, 105 and 110 of the RA Constitution.

The RA-Constitution-based RA laws on the Presidential election, the elections to the National Assembly and to the bodies of local self-government have a uniform logical basis (in the former two cases, the decisions of the Constitutional Court, while in the latter case the decision of the Supreme Court adopted by collegial procedure), and are final with regard to the disputes emerging while summing up the electoral results.

The resulting decision by the Constitutional Court was that Article 17 of the RA Election to the Bodies of Local self-government Act is in conformity with the Constitution.

In case of the Real Estate Act, the case was taken to Court on the appeal by the President of the Republic. The issue thereof was the constitutionality of the provisions in Article 22 of the Act. The disputable provisions were:

1. The amount of equivalent compensation for the realty to be alienated for the needs of the society and the state is determined by the decision of the Government, based upon the negotiations between the RA Government and the realty owner, as well as upon the written accord of the latter;

2. In case of dissatisfaction of the owner with the amount of compensation proposed by the Government of the Republic of Armenia against the property to be alienated, the Government of the Republic of Armenia can effect the alienation of the property only within a judicial procedure;

3. Before entering into legal force of the judicial decision, the owner of the realty subject to alienation for the needs of society and the state, shall forego inflicting damage to the realty;

4. The procedure of the alienation of realty for the needs of society and the state shall be established by the Government of the Republic of Armenia, based upon the provisions mentioned.

The Constitutional Court ruled that Articles 8 and 28 conform to the first provision and do not conform to the others, stating that the realty can be alienated based on part two of Article 28 of the Constitution, while with the consent of the owner lacking, the right of property can be terminated by the state only after passing the law on alienating a specific real estate, containing a substantiation of the exclusive importance and significance of the alienation, with an indication of the specific needs of society and state to be satisfied thereby. The Law will also oblige the Government, with the written consent of the owner, to determine the amount of compensation that can be disputed by the owner based upon the relevant financial-economic calculations, with regard to market prices, results of negotiations between the Government of the Republic of Armenia and the owner of the Realty subject to alienation.

Evaluating the law-enforcement practice and the governmental approaches, the Court ruling stated that the Government cannot establish a procedure of alienating the realty that will empower it to accomplish this type of alienation.

Quite interesting were the results of examining cases associated with international treaties on granting loans (the Agreement between the Republic of Armenia and the International Fund of Agricultural Development (the North-West Agricultural Services Project), the Agreement between the Republic of Armenia and the International Development Agency (Health Financing and Primary Health Care Development Project)). The Constitutional Court, although having determined their conformity to the Constitution, noted at the same time, that in the case of the former Agreement, the provisions in the credit agreement can be constitutional not only in the sense that by being applied within the competence of the bodies of state authority, they create prerequisites for implementing its basic principles and objectives, but they also originate from the fundamental human and civil rights.

Pulverising and ineffectively using credit funding not only impairs their payback, but also accumulates unjustified debts for the generations to come.

In the former case, considering that the program under examination contained a high risk of pulverisation and inefficient use of funding, and with regard to the defects occurring in the law-enforcement practice of previous credit programs in agriculture, the Constitutional Court decided that to avoid an unconstitutional situation from the implementation of the relevant agreement, the National Assembly and the RA Government shall, within their constitutional competence, implement special review over the use of funding received with the purpose of realizing "The North-West Agricultural Services Project".

In the latter case, having noted in the decision the conformity to the Constitution of provisions specified in the agreement, the Court ruled that the ratification and realization would be expedient under the condition of functioning published targeted state programs based upon the requirements of Article 34 of the Constitution and the RA Medical Help and Service to the Population Act. In Part two of the same decision, the Court recommended that the RA Government take immediate measures for generating the necessary prerequisites for targeted usage of budgetary and credit resources in the field of health care and an integral and coherent implementation of the requirements of Article 34 of the Constitution and the RA Medical Help and Service to the Population Act.

Having examined the case on determining the constitutionality of obligations specified in the Amending Development Credit Agreement (the Highway project) between the Republic of Armenia and the International Development Agency July 17, 1997 in Washington, and having used Article 67 of RA Constitutional Court Act to analyze the established law-enforcement practice of operating the Agreement between the Republic of Armenia and the International Development Agency on the credit for developing the highways (Highway Program) signed October 2, 1995, the Constitutional Court made the following finding:

1. At the stage of implementing the credit program the following faults and failures have occurred:

• arranging tenders for program realization and summing up the results were conducted with violations of the established procedures;
• the agreements were signed by an incompetent body, with violations of relevant requirements. In fact, the conclusion of contracts, management of funds, organization and review over the operations are entrusted to one and the same organization the office on program implementation, thus the resulting conditions do not ensure the required efficiency of review;
• there was no acting system of intermediate accountability, continuous review and feedback, while the system in operation was insufficient and flawed;
• no provision was made for the sufficient openness in using the credit funding, the debtor has not conducted an independent audit;
• the competent state bodies did not take the timely and necessary step to fuifill their competence of reviewing the usage of credit funding with a required coherence and at a proper level.

3. The RA Ministry of Transport underperformed their responsibilities provided by item 18 of the Procedure of Using the Credit Funding, approved by the decision #577 of December 15, 1994 by the RA Government.

4. Following the ratification of the credit agreement, the RA government did not review the course of its fulfilment with sufficient detail.

The procedure for using the foreign credit funding afforded to the Government of the Republic of Armenia, approved by the RA Government decision #577 of 15. 12. 1994, states: "The purpose of the Procedure herein is to enhance the efficiency of using the foreign credit funding afforded to the RA Government and of effecting the review over tender bidding". In fact, the council established to this effect had inadequately fulfilled its responsibilities with regard to the present Agreement as well. Moreover, the majority of the Council members having been transferred to other jobs and because of the structural changes in the Government, the Council for over two years became unauthorized in its status, while continuing to take decisions.

5. Article 77 of the RA Constitution states that the National Assembly implements review over the execution of the state budget, as well as over the usage of the loans and credits obtained from foreign states and from the international organizations. The Rules of Procedure of the RA National Assembly provides the mechanism of this constitutional competence by Article 145 enabling the deputies, within the framework of a legislative initiative, to suggest putting on the agenda the government report on this issue.

Item "c" of Article 2 of the RA Control Chamber of the National Assembly Act states that the Control Chamber, early in each semester (half-year period) presents a reference to the deputies of the RA National Assembly on the execution of the State Budget for the previous six months, on the use of loans and credits, obtained from other states and international organizations. Moreover, item "d" of Article 5 of the same Act empowers the Control Chamber to audit the usage and payback of loans and credits obtained from other states and international organizations. The Control Chamber of the National Assembly has not discussed the issue of the usage of credit funding allocated in 1997 for implementing the program of highways, and, consequently the deputies were not presented the relevant references. As a matter of fact, no due and continuous review had been established over the agreement in question, as provided by Article 77 of the RA Constitution.

Article 54 of the RA Constitutional Court Act reads: "The Constitutional Court, when uncovering facts of violations in the course of examining the case, shall report them to relevant state bodies and official persons. On this bases the relevant materials have been submitted to the Government and to the Prosecutor's office of Armenia".

However, the principal conclusion is that when selecting the forms of the judicial constitutional review or when examining the procedural features, it is necessary to fully consider both the law-enforcement practice¹⁹⁹ and the consequences of the decision being adopted. It is our belief that the basic provisions of Article 67 of the Republic of Armenia Constitutional Court Act²⁰⁰ can find an extensive application in the countries of emerging democracy.

One of the pivotal and perhaps most sensitive questions, as has been noted, is the issue of clarifying the objects of review and the subjects appealing to the Constitutional Court. Depending on what objects are the ones where review is exercised, the objectives set before the Constitutional Court become more clarified. The viability of the Constitutional Court, however, is clearly visible only when it becomes clear, who has the right to appeal to it.

International experience shows that the countries possessing specialized bodies of constitutional review may be provisionally classified into three groups:

1. The countries with the Constitutional Courts responsible for:

3. The countries with the constitutional courts mainly exercising the functions provided in item "a".

To be referred to the first group are Austria, Germany, Spain, Portugal, Italy, Russia, Slovakia, Hungary, Slovenia, Georgia.

To be referred to the third group, with the accent upon retaining the constitutional balance of the activity of the Authorities, are Greece, Bulgary, Turkey, Kirgizstan, Lithuania, etc.

The third group, also including Armenia, involves the countries with the range of activities of the constitutional courts substantially restricted by the Constitution. Similar systems exist in France, Romania, Latvia, Moldova, Ukraine, Kazakhstan, Uzbekistan, etc.

It is also to be noted that most countries entering different groups particularly single out the issues of providing constitutionality and legality of the activities of political parties, carrying out elections and referenda, which actions have become the objects of constitutional review. In particular, to ensure the constitutionality of the activities of political parties, a number of countries empower the constitutional courts to check their accounts. Moreover, in Portugal, for example, the registration of political parties is entrusted to the Constitutional Court. In this country, the Constitutional Court also reviews the income of state officials when getting job appointments and releases, by requiring declarations of income and property, which is subject to verification.

Independent of what group the country belongs to and what the range of constitutional review is, the objects of constitutional review have to be clarified with regard to the character of the objectives confronting the country.

The orientation of Constitutional Court activity, as well as its efficiency, are primarily stipulated by the scope of the objects of review, i.e. by the issues of constitutionality (in many countries also legality) of the regulatory acts to be examined by the Constitutional Court.

By far not in many countries all the noted types of legal acts are regarded as the objects of constitutional review. Those are mostly the countries of the above-noted first group. The trend of development of the constitutional review is such that the number of countries belonging to this group is continually growing. However, to be discussed here is primarily the Constitution and the laws adopted by the referendum. As already noted, there are many cases when constitutional courts reverted to this problem and even adopted decisions to clarify their position. The examples of France, the Czech Republic and a number of other countries show that those countries are inclined to beware of the constitutional review of the Constitution and of the laws adopted by the referendum. We have already noted in this regard that the system of constitutional review will never become integral and efficient if it does not embrace the interpretation of the Constitution independent of the character of constitutional review of regulatory acts of any kind.

To be identified in this regard is the second group of disputable issues. It is related to the decisions of central and regional bodies of executive power and bodies of local self-government. The experience of Armenia shows that, except the government decisions, the legal acts of this type are not objects of constitutional review. This situation is typical mainly for the countries making part of the third group. On one hand, this is explained by the fact that the Constitutional Court is not confronted with the task of resolving jurisdictional disputes, besides, the Court has no right to consider the individual complaints on constitutionality and legality of the acts on human right protection. On the other hand, within the total judicial system, an attempt is undertaken to concentrate these issues in the courts of general jurisdiction, with the focus of the constitutional courts being trained upon the objective of ensuring the constitutionality of laws and international treaties.

This type of decision will however require a distinct determination of functional relations of the Constitutional Court with the total judicial system (the best example will again be provided by Austria, Germany, Spain, Italy), lest there should emerge, on one hand, the stalemate situations, on the other hand, the issue resolution would not remain suspended, and should be transferred to the sphere of administrative red tape. This issue has unfortunately found no proper solution in Armenia, so the whole sphere is to be reviewed.

A frequently expressed opinion is that the constitutional review is done by a centralized or decentralized judicial system, while all other bodies directly associated with this issue are posing as subjects appealing to the Court (if it is provided by the Constitution or a Law). This seems a wrong approach causing confusion. The concepts of "subject of constitutional review" and "subject having the right to appeal to the Constitutional Court" are substantially different.

The study of many countries' constitutions shows, that different bodies have competence to exercise constitutional review directly, to some degree.

Naturally, the constitutional review is realized by different methods and in a manner established by law for any subject. Although different countries are characterized by different features, generally, the subjects of constitutional review are:

• the people (when adopting a Constitution by referendum or making amendments thereto);
• the President of the country (in most countries the text of the Presidential oath states the responsibility to protect the Constitution, while Art. 49, part 1 of the Constitution of the Republic of Armenia determines that the President of RA will watch the observance of the Constitution, ensure the normal activity of the legislative, executive and judicial authority. This type of competence undoubtedly requires a well-defined mechanism);
• the Parliament;
• specialized bodies of constitutional review;
• the judicial system of general jurisdiction;
• the law-protecting agencies;
• any state agency or a public organization ensuring the adoption of its decisions and the actions in accordance with the Constitution. Here in particular the governments are identified in whose regard the Constitution provides special responsibilities (e.g., Art. 89 item 7 of the Constitution of the Republic of Armenia states that the government is under an obligation to take measures to consolidate legality, to ensure the human rights and freedoms).

One of the types of review is that in a number of countries the Constitution provides a right to natural persons and legal entities to disobey the non-constitutional laws (Ghana, Benin, Slovakia, Germany).

As already noted, the system of constitutional review cannot be considered complete if it fails to embrace the entire field of retention and development of the system of values historically shaped as the fruit of social life of a particular nation and country. Therefore, each cell of the society is also posing as the subject of constitutional review.

One of the basic issues of constitutional review is as follows: who are the subjects appealing to the Constitutional Court, and in what way do they exercise their competence, particularly within the scope of abstract review? As a rule, their number includes the head of state, the parliament, and part of its membership, the government, courts of general jurisdiction, citizens. The scope of subjects possessing the right to appeal to the Constitutional Court, is established either by the Constitution (Germany, Armenia, Poland, Russia, etc.), or by the Constitutional Court Act (Moldova, Latvia, Uzbekistan, etc.), or by the Constitutional Judicial Proceedings Act (Estonia, Kirgizstan).

It is to be noted that in a number of countries the scope of subjects appealing to the Constitutional Court, is vast. E.g., in Portugal these also include the ministers, parliamentary fractions, the prosecutor, judges, bodies of territorial self-government, citizens.

In Russia: the President, the Government, the State Duma, the Council of the Federation, 1/5 of the deputies, the Supreme Arbitration Court, the Supreme Court, any judge, legislative and executive bodies of the subject states, as well as the citizens (if their rights were trampled by the Law).

In Syria this type of subject is only the President of the country and 1/4 of the Parliament, in Sri-Lanka the President alone.

In France, prior to 1974, the right to appeal belonged to the President, the Government, and the Chairs of the parliamentary chambers (within this time, the Constitutional Council heard annually 1 case on the average on the issue of constitutionality). Starting from 1974, the appealing subjects included 60 deputies and 60 senators (heard in 1974 - 1991 were 220 cases incited by the latters' initiative).

In Germany, the scope of subjects appealing to the Constitutional Court expanded in 1969.

In some countries, the appealing subjects can be the constitutional courts themselves, i.e., the Constitutional Court can examine a case by its own initiative. In certain countries the law provides for clarifying the limits of the initiative (Albania, Austria, Benin, Gabon, Uzbekistan). E.g., if the Constitutional Court of Austria examines a case for the constitutionality of some provision of the law, it can also look at other provisions of the law, independent of whether or not it is mentioned in the appeal. Generally, a case examination on the court's proper initiative, as a right afforded to the constitutional courts, is regarded as inexpedient, to us, the approach seems right that the Court is becoming exposed to the risk to be drawn into political games (like, for example, the experience of Russia, where the Court in 1991-1993 possessed this right that was nullified by the Constitution in 1993).

Efficiency of constitutional review is also necessarily stipulated by the right of direct appeal by the courts of general jurisdiction to the body exercising constitutional review, as well as the right of the Constitutional Court to review a court decision on the basis of an individual complaint with a claim against an unconstitutional legal regulation.

The most actual objective today in the issue of constitutionality of regulatory acts is the recognition of natural persons as subjects. This is a dual objective. Firstly, there has been a substantial expansion of the scope of subjects of constitutional review, so that the review is becoming more operational, secondly, an improvement is done to the inner-state system of human rights protection.

Independent of the character of system (European, American or another option), it is essential that the natural person had an opportunity to raise the issue of constitutionality of regulatory acts and to obtain a decision within a judicial procedure (e.g., in Slovenia, about 80 percent of regulatory acts are admitted for examination on the basis of individual complaints)²⁰¹. The pendency of this issue nurses a danger by becoming an active insinuative of political tension.

An attempt to conceive a picture of the Constitutional Court in the 21st century will make us believe its mission to be to ensure the vitality of the immune system of the social organism. The human society is a unique natural phenomenon not only ensuring the preservation of its own species and its reproduction with improved characteristics, besides, it can only exist in a community, in a system. Man, as a species, with his inherent qualities and the system of values is a reproducible species only within the system called the social environment.

It is general knowledge that our planet has existed for over 4.5 billion years, harboring the biological life for over two billion years, while intelligent Life came into existence only a few thousand years ago. Mankind has reached the current level of public consciousness having passed a long way.

Research by English anthropologists Lick et al. shows that the prehistoric man lived 11 750 000 years ago. The prehistoric human community, very much reminding of a herd of 30-40 individuals, existed 100 000 years ago. It is only since the 8th millenium B.C. the first cords of the symphony of intelligence started to be heard.

The initial sprouts of human society are related to the 5th - 4th millennia B. C. The ancient Sumerian, Egyptian and Babylonian sources show that in the 3rd millenium B. C. human society had already had certain achievements like the elements of state and institutes of religious worship.

For more than one half of this short period of intelligent existence, mankind lived in hordes and other organizational forms characteristic to the animal world. In the course of millennia the formation was going on of the emerging systems of state structures, and, as figuratively stated by Plato, the state was born out of human needs, when man needed something else that he could not do alone.

A further development of civilization resulted in the formation of organizational institutes of being with the public constitutional consensus, having a 200-year-old history only, starting its count only since the moment when America, adopting her Constitution, laid down therein the principles of forming the civil society of a new type.

The 20th century withnessed, too, the continuation of the quest for perfecting the systemic form of public being, regrettably accompanied by unsuccessful experiments in this field, carrying away 130 m. human lives, without producing any acceptable result. We agree with Professor G. V. Atamanchuk that the state administration, understandably, as a system, as a public phenomenon, rather than as designs and behavior of individual persons, even the most outstanding or moral, has not fulfilled its public mission. It was unable to preserve us, and mainly, our forerunners from slaughterous and inefficient revolutions, from brutal destructive wars, from dictators and windbags, from international conflicts, from terrorism and crime, from wasteful expenditure of huge natural, material and human resources"²⁰².

While today the primary goal of medicine is to overcome the immunodeficiency of the human body, the normal operation of the society is becoming increasingly dependent upon overcoming the immunodeficiency of the public organism, injecting it with dynamism and harmonic development, preventing irrational reproduction in public relations.

In this regard the 20th century has simultaneously become a qualitatively new period of the methods of searching for the harmonic coexistence of the human society. In view of the lessons of history, the humanity is confronted with the following vital priorities: to counter the revolutionary, to ensure the dynamism and sustainable development, the consequential wielding of administration following the principle of separation of powers, ensuring a balanced state of the functional structure of societal administration with regard to the novel capabilities of information science, development and introduction of a valid system of deterrents and counterbalances, ensuring their reviewed application, injecting new qualities to the immune system of society, recognizing it and affecting its operation to encourage its vitality. Those objectives were in the center of public attention following W.W.I, however their resolution was destined to the 21st century. The responsibility of the scientific thought of the turn of the century is to generalize the lessons of history and to prepare the soil for the resolution of those fundamental issues of great concern for the whole of mankind.

The scientific thought in the fields of microbiology and medicine has in the last few years produced a number of serious generalizations that are also exclusively significant for the subject of our study:

1. The immune system operation is directly associated with the brain and has a hierarchical character;

2. Each body cell has certain resources of self-defense, their termination triggering the protective system of the whole body;

3. The chief mission of the immune system is to retain the natural balance and stability within the entire body, since the non-rehabilitation of disrupted balance becomes the cause of irrational reproduction;

4. The immune and nervous systems are in a state of harmony, exactly like the immune system and the physiological balance of the body;

5. The immune system, as the control system, operates in its inherent order and is relatively independent. In a disrupted harmony, activation occurs of a relevant subsystem, and of the hormones responsible for the rehabilitation of the disrupted functional balance, which hormones can be activated in different degrees depending on the type of disruption;

6. Any pathological situation activates and triggers the entire system;

7. The number of immune-hormones always existing in a certain quantity, in case of a protective reaction increases up to the number needed for the full-blown execution of the protective function. However, if the protective ability is insufficient for the rehabilitation of the functional equilibrium, the emerging pathological situation demands interference.

Evolution of biological species shows that the protective system varies at different stages of development. Starting with the vertebrates, a qualitatively new system has been formed that reached perfection with the intelligent beings (humans). Relevant to this system is distinct differentiation and rationality of protection, a precise order of purposeful pre-programmed actions for preserving the integrity and harmony of the cellular system of the body.

The structural elements of the said system are:

- uncovering the disbalance;

- determining the type of violation (what is recognized, how and with what intensity must the protection system work?);

- exclusion of a new violation after the rehabilitated balance.

All that has been said shows that a perfect dynamic and harmonic functional system has been shaped and is operational in the most perfect creation of nature, the human organism characterized by the usage of an adequate control (immune) system.

To draw analogy between the human body and society (as a social body), an involuntary question will arise: in what way can a possible social analogue of the immune system ensure the dynamism and stability of the social development?

Independent of what the response is going to be, for us it is unambiguous that the primary link of the social organism, the man, is also bound to be the primary link of the immune system of the society. Therefore, the fixation of this reality with regard to the constitutional review of the 21st century is becoming a methodological basis for determining the scope of subjects of constitutional review.

Among the subjects appealing to the Constitutional Court, the bodies of local self-government, too, will have to find their places (as in certain countries), and the church (religious organizations). To those issues there are also different approaches. That is particularly so with the religious organizations that are separated from the state, but have to be able to defend his (and his companions') constitutional rights.

It is to be added that in all, the efficient operation of the institutes of constitutional review, their targeted action is largely contingent upon the thoughtful and weighted selection of the scope of the appealing subjects. The best model is perhaps the one where all subjects of constitutional review (and supervision), as well as the citizens (with regard to protection of their constitutional rights) are the subjects appealing to the Constitutional Court.

Both with regard to the implementation of constitutional powers and when shaping the objects and subjects of constitutional review, as has been noted, certain features of constitutional review in the protection of human rights are of great importance.

Protection of human rights is one of the most important international-legal and constitutional responsibilities of the state. The objective of the state is to establish a reliable system of socio-economic, political and legal guarantees for the protection of constitutional human rights that has to integrate into a single unity the principles, laws, structure, mechanisms. Posing as the subjects of the resolution of the problem are all institutes of state authority. Particularly important is the role of the head of state, the parliament, the courts, the government. As shown by the international experience, increasingly important is becoming the role of specialized bodies of constitutional review within the cause of efficient implementation of human rights protection. The following issues are to be elucidated:

a) how much does the body of constitutional review ensure the systemic integral solution of this problem;

b) what form of constitutional review and what system of appealing subjects are selected for protecting the human rights;

c) what, in the particular case, is the correlation between the citizen, the ordinary courts, the institute of ombudsman and the Constitutional Court?

The first question is directly associated with the problem of establishing an operational and integral system of guaranteeing the constitutional human and civil rights within the state. It is primarily related to the legislative and institutional guarantees.

The issue of human rights protection is not at all limited by the constitutional registration of this right. Are the necessary legal guarantees created for that? How integral and full is the legal field, have its internal contradictions been overcome, are there sufficient guarantees for law enforcement, are created and ready the relevant governmental and non-governmental institutes to resolve those problems? The answers to those questions have to be related to the sequence of priorities of the state politics. None the less important is the problem of the form of constitutional review in human rights protection. In international experience several basic approaches can be identified. They can provisionally be classified into two groups: direct review and indirect review. A typical example of the first group is countries where citizens are regarded as subjects appealing to the Constitutional Court without any preconditions.

The other group, in turn, can be divided into two subgroups: one - where the issues of protecting human and civil constitutional rights, within the framework of specific review indirectly become the subject of examination by the Constitutional Court. Two - where this issue becomes the subject of examination by the abstract, elective review (the example can be the decisions by the Constitutional Court of the Republic of Armenia with regard to examining the international treaties with Germany, Egypt, Georgia, where individual provisions were recognized as non-conforming to the Constitution of the Republic of Armenia with regard to the violations of the human constitutional rights).

The best example of the first subgroup is Italy. Here a citizen has initially to submit a complaint to an ordinary court. If both parties or one of them think that the complaint concerns the constitutionality of a regulatory act, the judge, if he finds (or assumes) it to be the case, he suspends the procedure temporarily to apply to the Constitutional Court.

A system very much resembling this is operational in Spain. Meanwhile, while in Italy and Spain these functions belong to all courts, in Austria, for example, they belong to the courts of the second instance and to the Supreme entity of judicial authority. In this case we deal with a partially specific and partially abstract, or mixed system.

In fact, the constitutional review in human rights can be done either as abstract review, or in the process of examining specific cases, as well as based on individual complaints.

The experience of the last four decades shows that the constitutional review based upon individual complaints is usually introduced some time after the establishment of the Constitutional Court. E.g., in Austria, the procedure of civil rights protection by the Constitutional Court based on individual complaints was introduced after 1975 only. Later it was introduced in Germany, Spain, Portugal. However, this situation cannot be regarded as absolute. The important thing is that the issue of human rights has today become one of the pivotal issues of constitutional review, and it can be successfully implemented primarily based on individual complaints. Therefore, we think that the New Independent States who created this opportunity without delay or loss of time, have acted in their own right.

The experience of the mentioned countries also shows that for an efficient implementation of this function, a distinct legislative regulation is necessary. Commonly effective is the so-called filtration mechanism ensuring, on one hand accessibility of the Constitutional Court for a person, on the other hand the appeals on the issues that really comprise the problem of the Regulatory acts and their conformity to the Constitution²⁰³. To be used for this purpose are: the capability of the ordinary courts (to get the right to appeal to the Constitutional Court when all other possibilities are exhausted), the procedure of paying the state duty to appeal to Court (e.g., in Germany since 1985 it amounts to 1000 DM, and in case of misusing this right it is 5000 DM), determining the boundaries of regulatory acts (e.g. in Russia appeals can be made only on constitutionality of a law), the institute of ombudsman (when the latter becomes a subject to appeal to the Constitutional Court), etc.

Another important issue is what kind of document should the decision of the Constitutional Court be in the particular case - a document of general (of a regulatory character) or of related nature application (with regard to the parties of a specific case). In this issue we also see different approaches. While in Spain and Italy it has a relative character, in Germany it is universal, and it is required that the Court of general jurisdiction appeal to the Constitutional Court only being ensured in a non-conformity of the regulatory act to the Constitution or its individual provision.

However, this situation in the issue of constitutional review of the protection of human rights is not a deterrent, since in Germany a citizen can also appeal to the Constitutional Court directly.

Generally in this regard the entities of constitutional review can be divided into 3 groups:

1. When any person can appeal to the Constitutional Court on the issue of constitutionality of a regulatory act (e.g., Austria, Germany, Russia, Hungary, Slovenia, Georgia).

2. When the appeal can be done indirectly, i.e. through ordinary courts and through the institute of ombudsman (Italy, Portugal and all the countries where the constitutional review is done by the courts of general jurisdiction).

3. When the citizens are deprived of the right to appeal to the Constitutional Court (France, Latvia, Romania, Armenia, Ukraine, Moldova).

In the field of human rights protection, the constitutional review has a dual function. On one hand, it is the protection of the constitutionally registered personal human and civil rights, on the other hand, it is the review over the bodies of state authority in the exercise of their duties with regard to this issue, with a manifestation of the relevant attitude.

The underestimation of this situation and lack of powers in this field on the part of the Constitutional Court unambiguously suggests an unsolvable problem, the state lacking an integral and operational system of human rights protection.

The practice of constitutional review has always advanced disputable questions: within what constitutional regulations it is preferable to effect the individual complaint, and is there a need for some mechanisms of filters or limitations? The resulting conclusion is that the most substantiated limitation is the division of constitutionally stated fundamental human and civil rights and freedoms. This type of approach enables us to make constitutional review substantial and efficient, and to inject clarity the functional relationship between the judicial bodies and other institutes of authority.

Another important question: what regulatory acts are covered by the review. Here there are substantial differences as well. For example, in Austria, Germany, Slovenia and a number of other countries there are practically no limitations, so that any regulatory act can become object of constitutional review. However, in Italy, Spain, and Russia, it extends only to the laws and regulatory acts having the force of a law. As to, e.g., Austria, Croatia and a number of other countries, the review extends also to the mandates adopted by the executive authority. We think that for the countries in the transitory stage of development, when no distinct operational system of guarantees have yet been formed of the human rights protection, a legislative field has multiple inherent controversies and disagreements, therefore, it is preferable not to delimit the scope of regulatory acts subject to constitutional review.

In different countries, apart from various features of constitutional review of human rights protection, there is a truth of general recognition, i.e. the main prerequisite for preventing the trampling of human rights and freedoms, the exclusion of this potential within the legislature itself is possible through a maximum expansion of the scope of subjects entitled to appeal to the Constitutional Court on this issue.

There is also another contingency, i.e. the role of constitutional review in the issue of confirming the constitutional principle of human dignity. This issue is currently becoming particularly important, with international seminars held on this issue (in particular, the seminar held by the Venice Commission 2-6 July, 1998 in Montpellier). The constitutions of over 65 countries contain a distinct approach to the principle of human dignity. This is the subject of one or more Articles of the Constitution, underscoring the inviolability of dignity as the inalienable right, the responsibility of the state to respect and to protect it, as well as its associations with the specific rights and duties.

Let us cite a few examples:

The Constitution of Germany, Article 1: "(1) The dignity of man is inviolable. To respect and protect it is the duty of all state authority".

The Constitution of the Russian Federation, Article 21: "1. The dignity of the person shall be protected by the state. No circumstance may be used as a pretext for belittling it ".

The Constitution of Portugal, Article 1: "Portugal is a sovereign Republic, based on the dignity of the human person and the will of the people.".

The Constitution of Poland, Article 30: "The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities".

The Constitution of Croatia, Article 35: "Privacy, Dignity, Reputation, Honor. All citizens are guaranteed respect for and legal protection of personal and family life, dignity, reputation, and honor".

The Constitution of Slovenia, Article 34:

"The Right to Personal Dignity and Personal Safety
The dignity and security of the individual shall be guaranteed. "

The Constitution of Azerbaijan, Article 35: "Protection of honor and dignity. Everyone has the right to protection of honor and dignity. The personal dignity is protected by the state. No circumstance can be the basis for a humiliation of personal dignity".

The Constitution of Georgia, Article 17: "1. A person’s conscience and dignity are inviolable".

The Constitution of Bulgary, Preamble and Article 4. Art. 4: "(1) The Republic of Bulgary is a law-governed state. It is governed by the Constitution and the laws of the country.

(2) The Republic of Bulgary shall guarantee the life, dignity, and rights of the individual and shall create conditions conducive to the free development of the individual and the civil society".

The Constitution of Ukraine, Article 3: "An individual, his/her life and health, honor and dignity, inviolability and security are recognized in Ukraine as the highest social value.

Human rights and freedoms and their guarantees determine the essence and the direction of the activity of the State. The State is responsible to the person for its activity. The establishment and maintaining of human rights and freedoms is the main duty of the State".

The French Constitution provides no clear formulation of this issue, which with regard to the principles of the European constitutionalism can be considered a substantial vacancy. This vacancy is considered as filled by the decision of the Constitutional Council.

In the New Independent States human dignity became a component of the constitutional right starting from 1990s. The Communist legal system had registered this principle in the criminal and civil law, rather than in the constitutional law. It was this inertia that had penetrated into the Constitution of Armenia (see Art. 19: "A human being cannot be subjected to torture, cruel of denigrating treatment or punishment".

Professor Petrukowska, Member of the Constitutional Tribunal of Poland, noted: "In the years of the real socialism the principle of human dignity had been the subject of civil law rather than constitutional law. The concept of respect for human dignity became a component of the doctrine of constitutional law after 1985. In Poland the approach was changed after the fall of Communism and the establishment of the parliamentary democracy: the issue of human rights and personal dignity became the object of constitutional law".

The sources of this constitutional principle are to be sought in the Christian outlook (The Old Testament, The Book of Genesis, Part 1): Man has been created in the image of God and is worthy of respect. In the introductory part of Leviticus it is said: The God of holiness, the God of love and life wants to make His people part of His holiness, so that they in turn become the carriers of life, love and holiness. It is with this purpose that He prompts and teaches the rules of the true, humane and dignified life. What are the deep generalizations within the philosophical dimension of life that are contained in the biblical rules and testaments. The state has to exist for man, rather than man for the state.

The principle of human dignity and human rights is the circle that lends integrity to the implementation of this statement. Dignity is posing as the general basis of the rights. It is manifested through different specific rights.

Inalienability, inviolability of dignity, the responsibility of the authorities to respect and protect it are the direct objects of the constitutional review.

Can a human being voluntarily reject the implementation of this principle to the measure only, to which the society will accept this rejection?

The minimal inventory of constitutional rights (with regard to the decision of the European Virtual Constitutional Court provisionally formed by the participants of the Montpeller seminar), sufficient for the excercise of human dignity, includes:
- the right to life,
- the right to freedom, security and personal inviolability,
- the right to individual dignity,
- the right of consent to medical treatment,
- the right of free movement,
- the right to the secrecy of computer information,
- the presumption of innocence,
- the right for legal protection,
- the right for respect and protection of privacy.
 
The role of the constitutional review in human rights protection is ever increasing with regard to the international cooperation. The international structures are going to play a significant role in the democratization of not only the intrastate but also the interstate relations. Particularly significant is currently the role of the European Court of Human Rights. However, prior to appealing to this Court, the individual has to exhaust all the intrastate resources of the protection of his rights. Particularly important among them is the contingency of appealing to the Constitutional Court with the individual complaint. Therefore, with regard to lending more integrity and efficiency to the system of intrastate relations, it is necessary that the individual possess the right to appeal to the Constitutional Court. The country recognizing the principle of the supremacy of law, the country accepting the recognition and respect of human rights as the highest value, cannot manifest an alternative methodological approach to the issue of establishing the system for protecting those rights, which is the case in the countries where the individual is dismissed from the system of constitutional review.