Constitutionalization of criminal law: the problem of defining the object and subject of the legal process

Abstract

The constitutionalization of criminal law is a complex and multi-level process of translating constitutional ideas and values into criminal law and the practice of its application. This is a controlled and directed process, which, from the point of view of its structural and functional analysis, presupposes the presence of a well-defined object of influence and subjects of constitutionalization. The object-subject characteristic of the constitutionalization of criminal law in branch science has not been studied. In the article, the author solves this urgent problem based on the application of a systematic approach within the framework of the implementation of the requirements of structural and functional analysis. The constitutionalization of criminal law is understood in this work as a process of substantive concretization of constitutional principles and standards in the practice of criminal law regulation. Proceeding from the fact that such regulation is an organic unity of the law and the practice of its application, the author, nevertheless, argues that the phenomenon of criminal law practice itself, as an element of the object of constitutionalization of criminal law, should be limited, excluding from its scope institutional and procedural characteristics of the practice, and leaving only its results in the form of the content, interpretation and meaning of the criminal law norms created by the parliament and applied by the court in a particular case. As a result, it is concluded that the object of constitutionalization in criminal law is precisely the criminal law norms expressed in the sources of law, which are given a particular interpretation in the process of law enforcement. When analyzing the subjects of the constitutionalization of criminal law, there is widespread opinion in science that this is exclusively the Constitutional Court of Russia is critically assessed. It is proved that, in addition to it, the subjects of constitutionalization are: parliament and courts of general jurisdiction. This made it possible to classify the subjects of constitutionalization, depending on the moment at which criminal regulation they are connected to ensure its constitutionality. “Primary” subjects of constitutionalization (parliament and court of general jurisdiction) carry out perspective constitutionalization, using constitutional principles and norms to regulate public relations, creating and applying criminal law norms. The Constitutional Court of the Russian Federation is empowered to carry out retrospective constitutionalization of the already declared legal matter through constitutional justice, which makes it possible to recognize it as a "secondary" subject of the constitutionalization of criminal law. The author declares no conflicts of interests.