Sravnitelnoe Konstitutsionnoe Obozrenie
(«COMPARATIVE CONSTITUTIONAL REVIEW» JOURNAL)
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Sravnitelnoe Konstitutsionnoe Obozrenie №6(85) 2011
Any issue or article of the CCR journal is now available for individuals and organizations
via the Russian Scientific Electronic Library http://elibrary.ru
The contents
CONSTITUTIONAL NEWS
October – November • 2011
(Austria, Argentina, Bulgaria, Guatemala, Germany, European Union, Ireland, Kyrgyzstan, Morocco, the Netherlands, Nicaragua, Poland, Russia, USA, Tunisia, Switzerland)
SPECIAL REPORTS
Visar Morina, Fisnik Korenica, Dren Doli,
The Relationship Between International Law and National Law in the Case of Kosovo: A Constitutional Perspective
The article is devoted to the relationship between international and national law in the constitutional legal system of Kosovo. The departing point of the analysis is the constitutional legislation of Kosovo. The authors substantiate the thesis that the constitution of Kosovo provides a monistic model of the relationship between international and national law, admitting both the direct force of international agreements and the fact that they are a part of the national legal system. The article also explains how international rules about human rights penetrate the national legal system, including an analysis of the wide constitutionalisation of the international mechanisms of human rights’ protection, which clearly shows itself in the Kosovo constitution.
Visar Morina – professor of constitutional law at the University of Prishtina, having been a member of the Commission for Drafting the Kosovo’s Constitution.
v_morina[at]yahoo.com
Fisnik Korenica – a lecturer on the Theory of State and Law at the University of Prishtina, senior research fellow at the Group for Legal and Political Studies.
fisnik[at]legalpoliticalstudies.org
Dren Doli – senior research fellow at the Group for Legal and Political Studies, senior lecturer on Law Principles at Universum University College, having served earlier as a senior legal executive for inte¬gration under the Kosovo Prime Minister.
dren.doli[at]legalpoliticalstudies.org
Anton Zuykov,
About the Past for the Future: the Establishment of the President’s Administration in Russia
During its 20 years of existence, the Russian President’s Administration gradually turned not only into an alter ego of the head of state, but also into a self-sufficient centre of state. It is doubtful whether the role of this institution, which is formally just an auxiliary institution, should be underestimated. Meanwhile, specialists in state law have avoided analysing its status, leaving this question to specialists in administrative law, who also do not hurry to attend to it. The President’s Administration’s activities mainly interest political scientists and journalists, including foreign ones. Eventually, in the absence of scientific research, this field gradually formed a discrepant, not to say demonic, image of the Administration. This article will fill in the mentioned gap and look at the process of formation of this institution fully and impartially.
Anton Zuykov – Candidate of Law, Senior Legal Adviser of the Directorate of Legal Matters of OJSC “Gazprom Neft”.
law-msu[at]inbox.ru
FEATURE: POLITICAL PLURALISM
Boris Krylov,
Issues of Political Ideology in Foreign Countries
The article is devoted to the influence of political ideology on national relationships, the organization of public institutions and their interaction with citizens. The author believes that the role of ideology and its influence on society nowadays should not be diminished. Conflicts appear between, on the one hand, the ideology of the main political parties and the activities of the state apparatus and, on the other hand, the ideology of the main part of the population that includes the electors of the representative state bodies. In addition, the scientific assessment of ideology is important because knowledge of social ideology is necessary to determine the perspectives of its development.
Boris Krylov – Professor of the Moscow State Legal Academy, Doctor of Law, Honoured Science Worker of the Russian Federation.
ilpp-ccr[at]mail.ru
Galina Sadovnikova,
Political Party Representation in Parliament and Opposition: New Trends on the Back Old Problems
The article deals with the problems of political party development in Russia and foreign countries. Events demonstrating the crisis of parties are highlighted, and the features of the modern party- political system and the trends of its development are identified. The necessity of a legal institutionalization of political opposition for the purpose of the development of a multi-party system and a more differentiated reflection of the socially important interests in the composition of representative bodies is justified.
Sadovnikova Galina – associated professor of the Department of Constitutional and Municipal law of the Moscow State Law Academy, Candidate of Law.
sadovnikovag[at]inbox.ru
Sergey Zaikin,
Certain Aspects of the Political Party Monopolism
The article analyses the role of political parties in contemporary society, their monopolistic position on the political market, and the advantages and disadvantages of such a position. This analysis is based on Russian and foreign experience, as well as the views of different representatives of political and legal science. The article also discusses the possibilities of the expansion and development of the interaction between political parties and other public associations.
Sergey Zaikin – postgraduate student of the National Research University “Higher School of Economics”, coordinator of projects in the Institute of Law and Public Policy.
zaikin[at]mail-ilpp.ru
POINT OF VIEW
Gadis Gadzhiev,
On Space-temporal Cogitation in Constitutional Law (Issues of Legal Ontology and Axiology)
The article is devoted to the analysis of the nature of legal conceptual space and its structure, within which is discussed the correlation and interaction of constitutional values, many of which are the expression of different social groups’ conflicting interests. The author expresses the idea of the counterbalancing of constitutional principles that helps to find balance between polar values and facilitates the harmonization of social life.
Gadis Gadzhiev – Judge of the Constitutional Court of the Russian Federation.
gadg[at]ksrf.ru
CASE LAW
Andrey Rumyantsev,
The 5% Threshold for the European Parliament Elections Is Considered Unconstitutional in Germany
In a decision of 9 November 2011, the Federal Constitutional Court of Germany considered unconstitutional the application of a 5% threshold for elections to the European Parliament. This serves as another sign of the gradual departure from the system of “limited” democracy imposed in Germany in 1949, when there was a deep distrust of the German electorate. “Limited” democracy was provided by the almost complete refusal of elements of direct democracy on the federal level, the establishment of the constitutional court with large powers and – not least – the implementation of an electoral threshold impeding the development of alternative political forces. These measures, excluding the activities of the Federal Constitutional Court, are interpreted as anachronisms nowadays, and the will to remove them gradually grows in the society.
Rumyantsev Аndrey – Dr.jur., Researcher of the Faculty of Law at the University of Regensburg (Germany).
post[at]law.net.ru
IN THE RUSSIAN CONSTITUTIONAL COURT: DECISIONS AND COMMENTS
Review of the Decisions of the Russian Constitutional Court
July – August • 2011
Valeriya Dolgopolova
Alexander Kynev,
The Limits of Involuntary “Partisation” in Russia
(Comment on the “Khomutininskoe Case” – Decision № 15-P of July 7, 2011)
The decision of the Constitutional Court №15-P of 7 July 2011 concerns the application of the Russian proportional elective system to the elections of representative bodies of “little-inhabited villages with a small number of deputies”. It stipulates that this situation presents a “risk of misrepresenting the electorate's will, a departure from the principle of free and just elections, and a violation of the equity of citizens’ electoral rights”. Although some of its provisions are debatable and some experts doubt the legal consequences of its application, this decision has become a milestone in the question of the reasonable limits of using different mechanisms of electoral engineering. In fact, the Constitutional Court, although carefully and restrictedly, has stated for the first time that electoral engineering has limits and the choice of its certain mechanisms must have reasonable restraints.
Alexander Kynev – Supervisor of Regional Programs of the Development of Informational Policy Fund.
RETROSPECTIVE REVIEW
Anton Lebedev,
The Ideas of the Federalization of Russia in the Russian Pre-Soviet Constitutional Law
The article deals with the emergence and development of ideas of the transformation of Russia into a federal state during the period of XIX – early XX centuries. The author concludes that the arguments concerning the federalization of Russia stated by opponents, who were also represented by leading liberal legal scholars, are diverse and reasonable. At the same time, the arguments of supporters of the reform in Russia are lopsided and poorly justified from a theoretical point of view. However, representatives of both points of view do not fully take into account the relationship of the federalism principles with civil liberties.
Anton Lebedev – postgraduate student of the Chair of Constitutional and Municipal Law at the National Research University «Higher School of Economics».
ant-lebedev[at]ya.ru
REVIEWS
Vicki C. Jackson,
Paradigms of Public Law: Transnational Constitutional Values and Democratic Challenges
Review of the book Ruling the World? Constitutionalism, International Law, and Global Governance Ed. by J. L. Dunoff and J. P. Trachtman (Cambridge; New York: Cambridge University Press, 2009)
The publication by Jeffrey L. Dunoff and Joel P. Trachtman of Ruling the World? Constitutionalism, International Law, and Global Governance brought to the fore in a sustained manner a growing literature which had appeared somewhat piecemeal in journals of international law, constitutional law, international relations and the like. Professor Vicki C. Jackson reflects and compares in her review the positions of all the authors of the publications for some main problems of constitutionalism and international law.
Vicki C. Jackson – Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center.
jacksonv[at]law.georgetown.edu