Proportionality Test: From the Court to the Legislator

The article proposes a mechanism of interaction between the legislator and the court based on the consistent application of the proportionality test in constitutional justice. The purpose of this mechanism is to bridge the gap between constitutional norms on human and civil rights and freedoms and federal legislation. The mechanism is based on the consistent application in constitutional justice of the test of proportionality as a method of constitutional interpretation and justification of decisions The author substantiates the conditions under which this mechanism of interaction can be realized. As a result of the analysis of legislation, judicial practice, Russian and foreign scientific research, the author concludes that there is a legal, theoretical and methodological basis for the implementation of the proposed mechanism of interaction. The established constitutional and judicial practice is indicated as the main obstacle to its operation, as well as to the realization of the principle of balance of public and private interests in general. Constitutional interpretation is based not only on the principle of proportionality, but also on the principles of constitutional restraint, the good faith of the legislator, and the presumption of the constitutionality of normative regulation. The latter actually prevent the application of the proportionality test. The interpretation applied by the constitutional court continues to be based on classical, positivist methods. As a result, the court uses only certain elements of the proportionality test as an additional way of arguing its position in the case.