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28.12.2015 New issue of Comparative Constitutional Review Journal №6(109) 2015 is now available!

CONTENTS 6(109) 2015                                           

 

CONSTITUTIONAL WATCH

OCTOBER – DECEMBER • 2015

Argentina, Armenia, Canada, Columbia, Georgia, Israel, Lithuania, Myanmar, Poland, Russia, Spain. Turkey 

 

LEVELS OF DEMOCRACY                                                                                               

Nikolai Bobrinsky

INTERNATIONAL STANDARDS OF LUSTRATION: WHERE MAY GOOD INTENTIONS LEAD

“Government purges” in Ukraine and its approval by the Venice Commission revives the issue of lustration and its compatibility with the rule of law and international legal requirements in the field of protection of human rights. This essay reviews the major controversial aspects of lustration through the prism of international human rights protection mechanisms (International Labour Organization mechanisms, European Court of Human Rights, European Committee of Social Rights) and recommendations of international organizations (Office of the UN High Commissioner for Human Rights, Parliamentary Assembly of the Council of Europe and European Commission for Democracy through Law) and analyses contradictions in the documents claiming to play the role of international standards in the field of lustration and problems of their implementation. It is concluded that the principles and terminology of the legal responsibility are unsuitable for lustration.

Key words: lustration; transitional justice; discrimination; retroactive punishment; collective responsibility.

Nikolai A. Bobrinsky - lawyer at “Secretan Troyanov Schaer SA”, Moscow branch (nikolai.bobrinsky@gmail.com)

 

POINT OF VIEW

Victor Cherepanov                                                                                                            

A SOURCE OF POWER IN A SUBJECT OF THE RUSSIAN FEDERATION: THE PROBLEM AND ITS SOLUTION

On the basis of some theoretical premises from ontology of law, methodology and logic of science and considering some legal positions of the Constitutional Court of the Russian Federation, the author examines some issues of evolution in the process of regional authority forming. The article reviews the constitutional origins and general definition of a source of power in the regions. The author presents his point of view on logical discrepancies in some attempts of construing of the Constitutional Court rulings, when these attempts do not regard the people in the regions as the source of the regional power. The author presents his own understanding of authority source in regions of the Russian Federation, and formulates a proposal of appropriate and relevant amendments for changing the federal law.

Key words: legal reality; constitutional and legal conceptual space; the multinational people of the Russian Federation; the people of a subject of the Russian Federation; a source of power of a subject of the Russian Federation.

Victor A.Cherepanov – Professor of Law, Stavropol State Agrarian University, Doctor of Law (sigma45@yandex.ru).

 

DUALISM OF PUBLIC AND PRIVATE LAW

Lorenzo Casini                                                                                                                   

"DOWN THE RABBIT-HOLE": THE PROJECTION OF THE PUBLIC\PRIVATE DISTINCTION BEYOND THE STATE

This article deals with two of the greatest "dualisms" present in contemporary legal sys­tems: the distinction between international law and domestic law on the one hand, and the distinction between public law and private law, on the other. The evolution of these two great dualisms is linked to the emergence of global public interests, the strategic role played by states and domestic administrations in the global arena, and the need to control and review how global hybrid institutions exercise their increasing powers. This contributes signifi­cantly to the emergence of multipolar administrative law, in which both public and private traits, and both domestic and international dimensions, constantly interact. Beyond the state, public and private law finds new ways of combining, borrowing tools and imitating solutions. In particular, when the public/private distinction goes international, it operates as a technology of global governance: it is a "proxy" for bringing given values into a new legal context and for recreating a "familiar" legal endeavor beyond the state. But this projection can be problematic: like in Lewis Carroll's "rabbit-hole," there is no guarantee that, when the values and legal mechanisms behind them are moved from one level to another, they will remain the same.

Key words: public international law; distinction between public and private law; global administrative law; administrative proceedings; hybrid public and private institutions; global regulatory institutions and regimes.

Lorenzo Casini - Associate Professor of Administrative Law, University of Rome Sapienza; 2013 New York University Hauser Global Research Fellow and Mauro Cappelletti Global Fellow in Comparative Law (lorenzo.casini@uniroma1.it).

 

THE MANY FACES OF ADMINISTRATIVE LAW                                                                  

Afterword

Andrey G. Rumyantsev – Deputy Editor-in-Chief, Dr.jur. (post@law.net.ru).

 

NEW FEATURES OF FEDERALISM

Alexander Salenko                                                                                                                 

THE CONSTITUTIONAL FOUNDATIONS OF GERMAN FEDERALISM

The article analyzes the conceptual foundations of German federalism as well as reflections by German scholars on respective constitutional shaping of the Bundesrepublik. The author presents a broad study of the existing views of the mainstream German constitutionalists on the concept of federation, the legal nature and characteristics of the constitutional and legal status of the member states (Länder). In particular, the article explores some doctrinal elements of the approach of the Federal Constitutional Court to the issues of federalism. They, generally, are based on concepts, which were originally developed within German theory of the three elements (Drei-Elementen-Lehre). This theory sees each member state (Bundesländer) as a unity of the state authority, territory and population. In the same vein, it considers a federation as an integrated entity of the state under centralized authority, commonwealth and a number of single member states (Länder). Finally, the author presents some thoughts about the possibilities and limits of experience, scientific approaches and the some elements of the doctrine of the German federalism when addressing to issues of federal relations within the Russian Federation

Keywords: state law; constitutional law; state features; federalism; subjects of the federation; federal units (Länder); theory of three elements of statehood (Drei-Elementen-Lehre); sovereignty.

Salenko V. Alexander - Associate Professor of International and European Law, Law Institute of Immanuel Kant Baltic Federal University, Candidate of Science* (Ph.D.) in Law (alexander.salenko@gmail.com).

 

Igor Irkhin                                                                                                                      

CANADIAN FEDERALISM: PROBLEMS OF CONSTITUTIONAL REGULATIONS OF COMPETENCES BETWEEN  THE FEDERAL STATE AND PROVINCES

This article discusses the constitution-legal regulation of the organization the federal structure of Canada, especially the implementation of federal relations between the Federation and sub-federal entities. The author focuses on the problems of distribution of powers of the Parliament of Canada and regional legislatures in accordance with the provisions of the Constitution Act of Canada 1867. The examples of judicial practices to resolve disputes in the differentiation of jurisdiction of the federal center and regional meetings on the basis provided for in the Constitution Act 1867 criteria of "peace, order and good governance". The author draws attention to the problems of unification and harmonization of legislation of Canada. Also conclude that the Act 1867 it is advisable to update regarding the distribution of powers between the federal center and the regions. One option may be the regulation of matters relating to the jurisdiction of the federal or sub-national level with differentiation of powers on the criterion of legal regulation and (or) administration legal acts. The author concludes that there is the necessity of modernization of Canada's federal model by regulating in a systematic the order interaction of the federal government and sub-federal units.

Keywords: Constitution, federation, regions, federal legislative power, exclusive power, competing power, residual power, Parliament, legislatures.

Igor V. Irkhin - Associate Professor of the Constitutional and Municipal Law Chair of the Kuban State University; Candidate of Science (Ph.D.) in Law (dissertacia@yandex.ru).

 

CONSTITUTIONAL JUSTICE IN PROGRESS

Alexey Antonov                                                                                                         

CONSTITUTIONAL COUNCIL OF THE FRENCH REPUBLIC – ITS FORMATION AND PROSPECTS FOR REFORMING

The Constitutional Council as a principal body of constitutional review takes a prominent place in the system of separation of powers in France. The evolution of the Council and the status of its members indicate significant changes in functions and role, which demonstrate an increase of influence on the governmental and even on political process. These changes become especially notable in the last decade. Although the reforming of the Constitutional Council and the constitutional reform in 2008 had only slight impact upon the status of the members, but new powers and a qualitative change in functions reflect the need to continue reform of the Constitutional Council and the procedures of its formation. As the French Constitutional Council moves closer to the classical "European" model of constitutional justice, French politicians and lawyers are expressing the ideas reflecting further necessity of shaping, professionalization and functioning of the Council after those of constitutional courts of other European countries. The article analyzes the processes and ideas aimed at changing the current model. It is quite possible that under the influence of the ECHR and other supranational judiciaries, the Constitutional Council would transform into a genuine constitutional court.

Keywords: Constitutional Council of France; the reform of the procedure of formation; the status of members; constitutional control and constitutional justice.

Alexey V. Antonov - Counselor of the Department of the Constitutional Court of the Russian Federation (Aleksey.Antonov@ksrf.ru).

 

LAW AND RELIGION

Anastasia Isaeva                                                                                                       

LEGAL STATUS OF RELIGIOUS ASSOCIATIONS: NEW TRENDS IN RUSSIAN LEGISLATION ON FREEDOM OF CONCIENCE

This article starts with a survey of the legal status of religious communities and the requirements for their registration in a number of countries. On the basis of a cross-country comparative analysis of the legislation in this field, the author concludes that in Russia there are legal obstacles for establishing religious associations. The inadequacy of the legal classification of religious communities in our country and the blurred requirements for their registration are discussed in the article with a concerned look into the constitutional principles, experience of other countries and the cases brought before the European Court of Human Rights. Based on an analysis of and the Hungarian experience, in particular , the author presents her vision of the prospects for implementing «two-level system» of the legal forms of religious communities existence in Russian secular state and civic society.

Keywords: freedom of conscience, freedom of religion, secular state, religious association, state registration.

Anastasia A. Isaeva - Senior Lecturer of the Law Institute at Tomsk State University, Candidate of Science* (Ph.D.) in Law (tess@mail2000.ru).

 

COMMENTS

Andrey Medushevsky                                                                                              

THE ORIGIN OF THE COMMUNIST REGIME: FROM THE ‘SOVIET DEMOCRACY’ TO THE ONE-PARTY DICTATORSHIP

The origin of the Communist regime remains the focus of acute debates not only for historians, but also for politicians and legal experts in the context of Soviet legacy and  the formation of the transitional Post-Communist regime. The widespread myth about soviets as integral institutes of direct democracy still inspires leftist ideological proposals and even has significant impact upon constitutional amendments to Russian Constitution of today. Demystification of the  Soviet legend is only possible by the profound research of its genesis and its real role in revolutionary government. On the basis of the 1918 Constitutional Commission archive documents the author makes a reconstruction of the historical place of the Soviet phenomenon clearly showing how far its “democratic” potential was from the deceptive ideal as it appeared before the eyes of masses.

Key words: communism, bolshevism, democracy, Soviet rule, 1918 RSFSR Constitution, electoral system, local self-government, one-party dictatorship.

Andrey N. Medushevsky – Professor, National Research University – Higher School of Economics (amedushevsky@mail.ru).

 

IN THE RUSSIAN CONSTITUTIONAL COURT

REVIEW OF JUDGEMENTS OF THE RUSSIAN CONSTITUTIONAL COURT

JULY – NOVEMBER • 2015

*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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