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06.09.2016 On 5 September a new issue №4 (113) 2016 of "Sravnitel'noe konstitucionnoe obozrenie" (Comparative Сonstitutional Review) Journal was published

Dear readers! Dear friends of the journal!


A new issue №4 (113) 2016 of "Sravnitel'noe konstitucionnoe obozrenie" (Comparative Сonstitutional Review) Journal was published! 

All the articles in the journal are published in russian. If you want to buy the issue or an article, you can do it here: /journal/sko/novyj-nomer/ 

 

CONTENTS 4 (113) 2016            

CONSTITUTIONAL WATCH

JUNE – JULY • 2016

Australia, Austria, Colombia, United Kingdom, Japan, Poland, Russia, Spain, Switzerland, Turkey

 

LANDSCAPES OF DEMOCRACY

Tatiana Khramova​                              

Australia: A Constitution without Rights and Rights outside the Constitution

Abstract

Australian constitutional model is quite unique for two reasons: first, it is based on the principle of parliamentary supremacy with no written Bill of Rights; second, it is astonishingly stable and resistant to change. Constitutional text contains few explicit rights provisions and is supplemented by a modest and unsystematic collection of implied rights recognized by the High Court of Australia. In spite of the lack of constitutional regulation of rights, the actual level of fundamental rights protection in Australia, determined by various ratings and indexes, is one of the highest in the world. Together with other – more substantial and deep-rooted – causes this explains two tendencies observed in contemporary Australia and scrutinized in a given article: 1) unwillingness to adopt a federal Bill of Rights (in the form of constitutional amendments or a legislative act); 2) unwillingness of the High Court to expand and deepen the potential of existing Constitution by broad and creative interpretation of its provisions. As for the first tendency, the following arguments of the Bill of Rights opponents attract our interest: commitment to Australian exceptionalism and confidence in the existing system of rights protection; supremacy of parliament; and speculations that protection of rights may weaken as a result of adoption of an abstract Bill of Rights. Caution and self-restraint of the High Court of Australia could be explained by the eagerness to preserve its legitimacy and maintain high authority of its decisions in the society which has delegated the prerogative of solving controversial problems, including those related to definition and restriction of rights, to the legislator. The study of peculiar features of Australian constitutional order and legal culture brings the author of this article to interesting conclusions.

Keywords

constitutional rights; implied rights; parliamentary supremacy; Bill of Rights; High Court of Australia.

Citation

Khramova T. (2016) Avstraliya: Konstitutsiya bez prav i prava vne Konstitutsii [Australia: A Constitution without Rights and Rights outside the Constitution]. Sravnitel'noe konstitutsionnoe obozrenie, no.4, pp.14–28. (In Russian).

Tatiana Khramova​ - Candidate of Sciences (Ph.D.) in Law, LL.M., Senior lawyer, Institute for Law and Public Policy.

 

Tigran Torosyan​                                                                      

Armenia’s transition to the parliamentary system: problems and prospects

Abstract

The article analyzes the goals and prospects of constitutional reforms, carried out in Armenia by the end of 2015, as well as challenges arising at the changing Armenian political scene. The author examines possible consequences of modification of the country’s political system – transition from semi-presidential to parliamentary form of government. The analysis of the present state Armenia’s weak multi-party system demonstrates that, as in the cases of other post-Soviet states, it is now in its early phase of consolidation – with all problems which all post-Soviet states face in the process of formation of democratic polity. The successful implementation of objectives of constitutional amendments in many respects depends on the transformation of current weak multi-party system into a fully functioning core element of country’s political system. The formation of full-fledged multi-party system is considered as a primary factor and condition of the realization of the main objectives set forward by constitutional amendments, i.e. improvement of political system leading to the establishment of parliamentary form of government and consolidated democracy with equilibrium and consensus of political forces, balanced separation of powers and duly functioning political institutions. The party system in this case will become one of central political institutions – one of bearing pillars supporting the whole building of the constitutional state. The paper proposes a framework of checks and balances which should prevent the degeneration of the political system. This framework has three dimensions: procedural dimension (free and fair elections), legal dimension (impartial constitutional review), and expert dimension (independent expert community of highly qualified specialists).

Keywords

constitutional amendments; post-Soviet transformation; democratization; multi-party system; parliamentary system; Armenia.

Citation

Torosyan T.S. (2016) Perspektivy i vyzovy perekhoda Armenii k sisteme parlamentskogo pravleniya [Armenia’s transition to the parliamentary system: problems and prospects]. Sravnitel’noe konstitutsionnoe obozrenie, no.4, pp.29–40. (In Russian).

Tigran Torosyan​  - Doctor of Political Sciences, Head of the UNESCO Department of Human Rights, Democracy and European Studies at Brusov State University of Languages and Social Sciences, (Yerevan, Armenia), Chief Editor of Armenian Journal of Political Science (e-mail: t.tigran@yahoo.com).

 

POINT OF VIEW

Konstantin Aranovsky, Sergey Knyazev​    

Correlation Between Constitutional Principles and International Standards in the Context of Russian Criminal Justice

Abstract

The article comprises analysis of the impact the international criminal justice standards, in the context of their correlation with the constitutional basics of dispensation of justice, have on contemporary Russian criminal proceedings. Special attention is paid to the criteria of categorising judgments of the European Court of Human Rights which contain broad interpretations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, elaborated on the basis of consensual practice, essentially establishing additional international obligations of states inter alia in the sphere of criminal law as international legal standards. Based on the premise that the Constitution of the Russian Federation and the European Convention on Human Rights do not comprise any prerequisite for contradicting each other, the authors conclude that judicial interpretation of these acts generally cannot lead to the conflict between constitutional and international values; when such conflicts arise, they should be resolved in accordance with the supremacy of the Constitution within the framework of the legal system of the Russian Federation.

Keywords

Russian criminal proceedings; constitutional principles of justice; international standards of criminal justice; Constitutional Court of the Russian Federation; European Court of Human Rights.

Citation

Aranovskiy K., Knyazev S. (2016). Sootnoshenie konstitutsionnykh printsipov i mezhdunarodnykh standartov v kontekste rossiyskogo ugolovnogo pravosudiya [Correlation Between Constitutional Principles and International Standards in the Context of Russian Criminal Justice]. Sravnitel'noe konstitutsionnoe obozrenie, no.4, pp.41–58. (In Russian).

Konstantin Aranovsky - Judge of the Constitutional Court of the Russian Federation, Doctor of Sciences in Law, Professor, Far Eastern Federal University (e-mail: aranovsky@ksrf.ru).

Sergey Knyazev​  - Judge of the Constitutional Court of the Russian Federation, Doctor of Sciences in Law, Professor, Far Eastern Federal University (e-mail: knyazev@ksrf.ru).

 

FREEDOM OF SPEECH

Aleksandr Kul'nev    

Criminal defamation: necessity or menace?

Abstract

The vast majority of countries in the world have criminal defamation laws on the books. These are intended to resolve the conflict between two fundamental constitutional rights: that of freedom of expression, and that to defend one’s honor and good name (or reputation). In order to adjudicate such conflicts, legislators can choose between two approaches. They may consider one of conflicting rights more important to be protected while sacrificing the other. Alternatively, they may attempt to balance both rights, putting minimal restrictions on each. The idea underlying the first approach is often the implicit rationale for criminal defamation laws. An example in point could be arguments presented by members of the Russian parliament in supporting recriminalization of defamation in 2012. Prohibiting circulation of libelous information is justified solely on the basis of the evaluated damage it could inflict on someone’s reputation, taking no account of the consequences for freedom of expression. This approach is at odds with the very essence of constitutionalism, which requires that governments should protect all civil liberties at all times, not just those which seem important in any given situation. In contrast, the idea underlying the second approach – “balancing” – makes difficult justifying the criminalization of libel, especially when there is the availability of civil lawsuit, a proven and widely-used tool for the protection of reputation. With this in mind, the author of this article argues that criminalizing defamation is more likely to make problems for the system of civil liberties and constitutional rights than to support a satisfactory rights balance within it.

Keywords

freedom of expression; freedom of speech; reputation; limits of rights; conflicting rights.

Citation

Kul'nev A. (2016) Kriminalizatsiya klevety: neobkhodimost' ili ugroza? [Criminal defamation: necessity or menace?]. Sravnitel'noe konstitutsionnoe obozrenie, no.4, pp.59–72. (In Russian).

Aleksandr Kul'nev - Ph.D. student in Constitutional Law, Law Faculty, Lomonosov Moscow State University (e-mail: akulnev@gmail.com).

 

FIGHTING CORRUPTION: CONTRIBUTION OF CONSTITUTIONAL LAW

Stanislav Sheverdyaev  

Constitutional and legal approaches to the development of anti-corruption issues: the main routes

Abstract

In contrast to other legal disciplines, the science of constitutional law has for a long time paid little attention to the anti-corruption policies. Traditionally it has been mostly a domain of the criminal and administrative law. However, in recent decades, political and other social sciences, as well as the above mentioned legal sciences, have accumulated sufficient volume of consolidated knowledge that has become suitable for development for a special research field within the modern constitutional law. Particularly, because the corruption, as a phenomenon, especially in such advanced forms as systemic corruption or political corruption, could threaten constitutionalist and democratic principles and goals. Therefore, the lack of interest in the past for counteraction of corruption from constitutional research appears now unacceptable any more. The article discusses the main types of the constitutional anti-corruption research. Among the preferable ways there are: (a) “theoretical” approach, which allows to assess corruption risks for the most fundamental constitutional values (democracy, separation of powers, political pluralism, etc.) and to make a system of effective protection tools against these challenges; (b) “thematically oriented” approach, which allows to focus on electoral corruption and lobbying and to protect constitutional developments again these dangers; (c) “implementation” approach, associated with adaptation of anti-corruption conventions in current constitutional legislation and their implementation. The author highlights a number of constitutional studies of anti-corruption issues concentrated on the legal status of the public officials in the constitutional context; on PEPs’ accountability; on the development of the anti-corruption rights such as the right to access to governmental information; on the safeguards and accountability instruments within the civil society; on the improved procedure of budgetary process and its performance, on restraints on the state involvement into economic activities. The author also suggests to bring this sensitive sphere into the broad scientific and expert discourse to give this issue appropriate practical and political meaning at the societal level.

Keywords

constitutional legal science; constitutional methodology of anti-corruption studies; systemic and political corruption; electoral corruption and lobbying.

Citation

Sheverdyaev S. (2016) Konstitutsionno-pravovye podkhody k razrabotke antikorruptsionnoy problematiki: osnovnye marshruty [Constitutional and legal approaches to the development of anti-corruption issues: the main routes]. Sravnitel'noe konstitutsionnoe obozrenie, no.4, pp.73–91. (In Russian).

Stanislav Sheverdyaev - Candidate of Sciences (Ph.D.) in Law, Associate Professor, Law Faculty, Lomonosov Moscow State University (e-mail: shevers@rambler.ru).

 

POLITICAL PARTIES: MIRROR OF SOCIETY

Fedor Dolgikh  

Legal regulation of political party making in Russia and Kazakhstan and its influence on formation of party system

Abstract

The purpose of this survey is the comparative analysis of problems in establishing political parties in the Russian Federation and the Republic of Kazakhstan. As criteria for comparing party systems in Russia and Kazakhstan, the author of this article used their actual functioning, statutory concepts of political party in both countries, legally formulated requirements to political parties, due procedure of establishment and state registration of parties, existing restrictions on their establishment and activities, and the impact of the legal status of political parties on the development of the party systems as it is seen through the prism of electoral laws. The article is based on the analysis of legal and other normative acts in the Russian Federation and the Republic of Kazakhstan, which regulate the establishment and activities of political parties. On the basis of the comparative research of the legislation and other ways of regulation of political parties in the Russian Federation and the Republic of Kazakhstan the author comes to the conclusion that the regulation framework of party-making (including rules of the state registration) and the party activities (including electoral activities and participation) are in both countries very similar. Nevertheless, legal regulation of establishment and activities of political parties in the Republic of Kazakhstan, are significantly more rigid than in Russia. One of the main conclusions of this essay is that, despite some insignificant differences in legal and organizational environment, the party systems in both states have developed to the same kind of the multiparty system with one dominant party.

Keywords

political parties; registration of parties; the establishment of a party; the party system; elections and parties; the Russian Federation; the Republic of Kazakhstan.

Citation

Dolgikh F. (2016) Pravovoe regulirovanie sozdaniya politicheskikh partiy v Rossii i Kazakhstane i ego vliyanie na formirovanie partiynykh system [Legal regulation of political party making in Russia and Kazakhstan and its influence on formation of party system]. Sravnitel'noe konstitutsionnoe obozrenie, no.4, pp.92–106. (In Russian).

Fedor Dolgikh - Candidate of Science (Ph.D.) in History, Chair of Theory and History of State and Law, Faculty of Law, “Synergy” University in Moscow (e-mail: fdolgih@mfpa.ru).

 

PRAXIS

Grigory Vaypan  

Hard to Be a God: the Russian Constitutional Court and its First Case on Enforceability of a Judgment of the European Court of Human Rights

Abstract

The past two and a half years – from late 2013 to the first half of 2016 – have seen the creation of a legal framework for the resolution of conflicts between the Russian Constitution and international human rights treaties. Within this framework, the Constitutional Court of the Russian Federation has been given a central role of the guardian of “national constitutional identity”, endowed with the power to set limits to Russia’s “acquiescence” in its relations with international human rights bodies, first and foremost with the European Court of Human Rights. An important milestone in the crystallization of this framework has been the judgment of the Constitutional Court of 19 April 2016 No.12-P. In this judgment, the Constitutional Court has for the first time applied its new power to a specific judgment of the European Court of Human Rights – Anchugov and Gladkov v. Russia – and has found it partially unenforceable. This article is an attempt to evaluate this first in concreto experience of the Constitutional Court in light of its accumulated in abstracto case law on the discussed issue. The author concludes that the methodology used by the Constitutional Court to decide upon the enforceability of the European Court’s judgments is incoherent and contradictory. This, in turn, undermines the integrity of the Constitutional Court’s findings in Anchugov and Gladkov v. Russia. Overall, the judgment of the Constitutional Court of 19 April 2016 No.12-P illustrates how difficult it is for one to be a defender of constitutional values where no threat to such values is present.

Keywords

Anchugov and Gladkov v. Russia; Constitutional Court of the Russian Federation; European Court of Human Rights; right to vote; imprisonment.

Citation

Vaypan G. (2016) Trudno byt' bogom: Konstitutsionnyy Sud Rossii i ego pervoe delo o vozmozhnosti ispolneniya postanovleniya Evropeyskogo Suda po pravam cheloveka [Hard to Be a God: the Russian Constitutional Court and its First Case on Enforceability of a Judgment of the European Court of Human Rights]. Sravnitel'noe konstitutsionnoe obozrenie, no.4, pp.107–124. (In Russian).

Grigory Vaypan - Head of Litigation Unit, Institute for Law and Public Policy (e-mail: g.vaypan@mail-ilpp.ru).

 

SCHOLA JURIDICUM: METHODS OF INTERPRETATION OF THE CONSTITUTION

Aleksei Dolzhikov  

Interpretation of Constitutional Rights

Abstract

Constitutionally-enacted Human rights and freedoms of the Citizen (hereafter – constitutional rights) often require clarification of their scope and limitations. Being the prerogative of the Constitutional Court of the Russian Federation, the question of interpretation of constitutional rights unites many basic problems of modern constitutionalism. This paper has the methodological aim. It initially is addressed to those who teaches and studies the general courses on the constitutional law or elective disciplines connected with protection of constitutional rights in case-law of the Constitutional Court of the Russian Federation. Beside this paper could be interesting to the participant of constitutional adjudication. In the first part of the paper the general issues of the theory of judicial interpretation and their features concerning constitutional rights are analyzed. This part of the paper due to its theoretical origin could be skipped in case of educational use only. The second part of work is devoted to the analysis of classical methods of interpretation of constitutional rights. In this regard special attention is paid on of the case-law of Constitutional Court of the Russian Federation and some foreign bodies of the constitutional control which illustrates four “canons” of interpretation of constitutional rights.

Keywords

legal methodology; constitutional interpretation, constitutional rights; constitutional adjudication.

Citation

Dozhikov A. (2016) Tolkovanie konstitutsionnykh prav [Interpretation of constitutional rights]. Sravnitel'noe konstitutsionnoe obozrenie, no.4, pp.125–151. (In Russian).

Aleksei Dolzhikov - Candidate of Sciences (Ph.D.) in Law, Associate Professor, Department of the State and Administrative Law, Faculty of Law at Saint Petersburg State University (e-mail: a.dolzhikov@spbu.ru).

 

IN THE RUSSIAN CONSTITUTIONAL COURT

REVIEW OF JUDGEMENTS OF THE RUSSIAN CONSTITUTIONAL COURT

MAY – JULY • 2016

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