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06.11.2015 A new issue of Comparative Constitutional Review Journal №5(108) 2015 is now available! Now you can order an article or issue of the journal on-line!

CONTENTS 5(108) 2015                

 

CONSTITUTIONAL WATCH

MAY – AUGUST • 2015

Belarus, Greece, Kosovo, Nepal, Pakistan, Palestinian National Authority, Russia, Spain, Singapore, USA

 

SPECIAL REPORT                                                                                                         

Elena Gritsenko, Ekaterina Babelyuk, Maria Proskuryakova

DEVELOPMENT OF THE RIGHT OF ACCESS TO INFORMATION IN THE FIELD OF PUBLIC GOVERNANCE IN RUSSIAN AND GERMAN CONSTITUTIONAL LAW

The article offers a comparative review of the constitutional and legal bases of the right of access to information about the activities of public administration in Russia and Germany. It presents approaches to the definition of the content of and restrictions to this right in both legal systems. Originally, access to information about activities of the public administration in Germany was beyond constitutional guarantees. At the same time, German legislative and law enforcement practices gave a broad interpretation of the guarantees of the right in question, while the Russian legislative and judicial practices specified the constitutional right of everyone to receive information about the activities of public authorities in the first instance through the establishment of the right’s limits and restrictions. A comparison of restrictions of this right in the legislation of Russia and Germany indicates a shortage of legal certainty in the Russian legal approach. Moreover, the Russian approach to the establishment and judicial interpretation of restrictions of the right of access to information regarding activities of the public administration can be characterized as one-sided, being expressed in the idea of absolute protection of any classified information. Therefore the German experience in applying a method of balancing interests for the resolution of conflicts between the right of access to information and other constitutional rights deserves special attention, with a view to improving Russian legislation and judicial practice in this field.

Key words: right of access to information; public governance; public administration; principle of openness and transparency of public authorities; protection of classified information; method of balancing interests.

Elena V. Gritsenko – Professor, Chair of State and Administrative Law, St. Petersburg State University, Doctor of Law (gricenko.e@jurfak.spb.ru).

Ekaterina G. Babelyuk – Associate Professor, Chair of State and Administrative Law, St. Petersburg State University, Candidate of Sciences* (Ph.D.) in Law (ilpp-ccr@mail.ru).

Maria I. Proskuryakova – Postgraduate Student, Chair of State and Administrative Law, St. Petersburg State University (pro-mariy@yandex.ru).

 

Svetlana Vasilieva                                                                                                       

THE TRANSFER OF STATE POWERS TO ORGANIZATIONS: LEGAL MECHANISM

Based on Russian legislation and the latest practice in transferring state powers to organizations, this article analyses the general legal approach to understanding this process and formulates rules that could serve as the basis for appropriate legal mechanisms. In connection with the global and multidisciplinary features of the transfer of state powers to organizations, the author does not guarantee full and complete coverage of the topic. In addition to the theoretical aspects the article contains some examples of privatization, outsourcing, the problems of implementing the theory of the service state, some cases involving organizations providing public services and giving concessions of cultural objects. The reader will see the problem of transfer of state powers and some suggested ways of solving it, first from the standpoint of public law and, secondly, in the terms of general regulation (primarily, constitutional and administrative).

Key words: state; power; function; delegation; privatization; outsourcing; management; public corporation; state body; organization; rights protection; administrative status.

Svetlana V. Vasilieva – Associate Professor, National Research University – Higher School of Economics, Candidate of Sciences* (Ph.D.) in Law (masslo@yandex.ru).

 

POINT OF VIEW

Renata Uitz                                                                                                                       

CAN YOU TELL WHEN AN ILLIBERAL DEMOCRACY IS IN THE MAKING? AN APPEAL TO COMPARATIVE CONSTITUTIONAL SCHOLARSHIP FROM HUNGARY

As long as the search for a global constitution remains an aspiration of comparative constitutional scholarship, the ability to identify trends and forces that drive constitutions away from commonly accepted minimum standards should be a matter of special concern for practitioners in the field. Recent Hungarian constitutional developments offer a helpful litmus test for reflecting on the difficulties comparative constitutional law analysis faces when tackling the gradual degradation of a constitutional regime. This article argues that routine comparative constitutional law analysis is prone to overlook symptoms of gradual constitutional decline and that strong confirmation bias steers analysis towards seeing dialogue where defiance drives local actors. As a result, comparative analysis may overlook the building of a constitutional regime in which constitutional constraints on the exercise of political power evaporate, signs which point to clear departures from the global fold. The article demonstrates that comparative constitutional analysis has the potential to detect the gradual decline of a constitutional system, provided that its practitioners are keen to reach beyond their traditional comfort zone and engage with local oddities and discord as formative forces in national and supranational constitutional developments.

Key words: constitutional reform; Constitution of the Republic of Hungary; constitutional amendments; European Union; comparative constitutional law study; illiberal democracy.

Renata Uitz – Professor, Chair of the Comparative Constitutional Law Program, Central European University, Budapest (ilpp-ccr@mail.ru).

 

FORUM: RIGHT TO COUNSEL AND STANDARDS OF JUSTICE

Tamara Morshchakova                                                                                                         

CONSTITUTIONAL FOUNDATIONS OF THE QUALIFIED LEGAL ASSISTANCE SYSTEM’S ORGANIZATION AND REFORMATION IN THE RUSSIAN FEDERATION

The constitutional content of the right to qualified legal assistance is considered by the author in terms of relevant problems of advocacy reform, including those related to the implementation of mechanisms for access to legal representation not only by advocates, but also by lawyers who are currently providing commercial legal services. The author gives an interpretation of the right to legal aid, its unrestricted nature, and compares it with an absolute right to judicial protection, the right to defense counsel in criminal proceedings, and the right to free legal assistance. The importance of the principles of organization and operation of the advocacy community as an independent self-regulatory and self-governed non-profit organization is emphasized, as well as of the principles of adversarial proceedings as the basis for the constitutional institution of legal aid. Threats to the status of human rights protectors and to constitutional development of the system of legal assistance by reform of the “market for legal services” arising from concepts in the “Justice” program of the Russian Federation government are analyzed. The author considers constitutionally grounded options for financing mandatory defense in criminal cases.

Key words: qualified legal assistance; guarantees of fair justice; monopoly in the sphere of advocacy; business lawyers (corporate lawyers); reform of the advocacy; independence; self-dependence; self-regulation of the advocacy; the legal services market; free legal assistance.

Tamara G. Morshchakova – Head of Chair of Judicial Branch, National Research University – Higher School of Economics, Doctor of Law, International Commission of Jurists Member (tmor@ksrf.ru).

 

Wilder Tayler, Róisín Pillay, Vidar Strømme                                                             

THE INDEPENDENCE OF LAWYERS: INTERNATIONAL STANDARDS AND FOREIGN EXPERIENCE

The review includes some materials from the discussions held during a joint roundtable of the International Commission of Jurists and the Institute of Law and Public Policy on “Providing the independence of lawyers: Russian and foreign experience” in May 2015. Despite the seeming simplicity, the authors, representing national associations of lawyers or being practicing lawyers, focus in practical terms on the weak points of the system of access to justice, drawing attention to unresolved problems of the independence of lawyers. The review contains a detailed description of international standards for the independence of lawyers and information on the system of advocacy in a number of foreign countries.

Key words: access to justice; independence of lawyers; right to qualified legal assistance; international human rights law; procedural law of the European Union.

Wilder Tayler – General Secretary of the International Commission of Jurists.

Róisín Pillay – Director of the International Commission of Jurists Europe Regional Programme.

Vidar Strømme – Chair of the International Commission of Jurists, Norway (ilpp-ccr@mail.ru).

 

LEGITIMACY OF POWER

Mikhail Krasnov                                                                                                                  

“MONARCHISATION” OF PRESIDENTIAL POWER

The article attempts to demonstrate that, despite the similarity of the institutions of monarchy and presidency, they are fundamentally different from each other. Therefore, a president should be considered not as a “republican monarch”, but as an “ersatz” monarch, and not in its metaphorical but in its literal meaning. This fact has practical consequences, expressed in the conscious or unconscious effort of a president to acquire monarchist features lacking in his office, primarily permanence of tenure and avoidance of responsibility. However, going down this path, a president drifts toward dictatorship. In order to confirm this hypothesis, the author analyzes fundamental differences between the institution of presidency and the institution of monarchy. According to the author, the immanent features of a monarchy determine the immutability of its nature even when its possesses different amounts of power and, on the contrary, the acquisition by a president of some monarchical traits constitutes a modification of the nature of the presidency itself.

Key words: president; monarch; features of the monarch; dictator; Roman dictator; origins of the institution of presidency; security of tenure; irresponsibility; political neutrality.

Mikhail A. Krasnov – Professor, National Research University – Higher School of Economics, Doctor of Law (mkrasnov@hse.ru).

 

POLITICS IN CONSTITUTIONAL JUSTICE

Vasily Zagretdinov                                                                                                               

CONSTITUTIONAL WEAPON OF POLITICS

The enhancing role of the judiciary in recent times naturally led to a growing interest in the phenomenon of judicial control. What role do constitutional courts play in the system of separation of powers? Are constitutional courts independent bodies? How does the power of constitutional courts to declare a law unconstitutional relate to the role and authority of parliament as the supreme representative body? The present article contains an analysis of the special role of constitutional courts in the formation of state policy, focusing on the relations between constitutional courts and other governing institutions.

Key words: constitutional court; majoritarianism; judicial discretion.

Vasily I. Zagretdinov – Postgraduate Student, Constitutional and Municipal Law Chair, Moscow State University (v.zagretdinov@gmail.com).

 

PRAXIS

Olga Kryazhkova, Yulia Rudt                                                                                             

CHANGING THE ORDER OF ITEMS IN A CONSTITUTIONAL COURT’S JUDGMENTS: WHY DOES IT CHANGE THE SUM?

This study shows the key approaches to selection and structuring of arguments by the Russian and South African constitutional courts. The authors focus on cases involving human rights of people living with HIV as illustrations of ineffective techniques used in Russian constitutional practice: absence of an explicit interpretative methodology; inconsistent constitutional and legal analysis; too abstract nature of judgments, including descriptions of their legal consequences; ignoring any discussion of the arguments of the parties, etc. The authors call for critical rethinking and revision of traditional way of writing constitutional judgments in Russia and see South African constitutional practice as a good practical example.

Key words: constitutional justice; decision of constitutional court; proportionality test; human rights protection; HIV phobia.

Olga N. Kryazhkova – Associate Professor, Department of Constitutional Law named after N. V. Vitruk of the Russian State University of Justice, Candidate of Sciences* (Ph.D.) in Law (kryazhkova@inbox.ru).

Yulia A. Rudt – Teaching Assistant, Department of International Law, Novosibirsk State University (arudt@mail.ru).

 

IN THE RUSSIAN CONSTITUTIONAL COURT

REVIEW OF JUDGEMENTS OF THE RUSSIAN CONSTITUTIONAL COURT

JUNE – JULY • 2015

 

COMMENTS

Alexander Blankenagel, Ilya Levin                                                                                   

IN PRINCIPLE, NO… BUT YES, IT IS POSSIBLE! THE RUSSIAN CONSTITUTIONAL COURT AND THE BINDING POWER OF DECISIONS OF THE EUROPEAN COURT OF HUMAN RIGHTS

The commentary concerns the decision of the Russian Constitutional Court on the limits of the mandatory effect of decisions of the ECHR. The problem is a problem well known also to other courts – supremacy of the constitution in relation to international treaties – but has only partially been resolved well. The Constitutional Court tries to concretize the inter-judicial dialogue by limiting the “monologue” of the ECHR, an approach which has some sense and justification. However, while asserting the scope of its constitutional control, the Constitutional Court makes unconvincing arguments regarding sovereignty, ignores essential features of the Russian Constitution and its own past practice regarding Part 1, Art. 17, of the Constitution, and doesn’t explain the significance of Art. 46 of the Vienna Convention in determining limitations on the mandatory effect of ECHR decisions. Furthermore, the Court sometimes relies on worn-out terminology, thus creating a negative uncertainty about the implementation of ECHR decisions, which is impermissible in the current political situation.

Key words: binding force of ECHR decisions; sovereignty; influence of human rights under the ECHR on basic rights in the Russian constitution; Art. 46 Vienna Convention on International Treaties; control of the constitutionality of decisions of the ECHR; relationship between the Russian Constitutional Court and the ECHR.

Alexander Blankenagel – Professor, Chair of Russian Law, Public Law and Comparative Law, Humboldt University, Berlin (alexander.blankenagel@rz.hu-berlin.de).

Ilya G. Levin – Dr.Jur., jurist (ilya.levin@online.de).

 

*According to the International Standard Classification of Education (ISCED) 2011, Candidate of Sciences belongs to ISCED level 8 – “doctoral or equivalent”, together with Ph.D, D.Phil, D.Lit, D.Sc, LL.D, Doctorate or similar.



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