Sravnitelnoe Konstitutsionnoe Obozrenie
(«COMPARATIVE CONSTITUTIONAL REVIEW» JOURNAL)
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Sravnitelnoe Konstitutsionnoe Obozrenie №2(87) 2012
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
FEBRUARY – MARCH • 2012
(Austria, Egypt, Finland, Germany, India, Latvia, Moldova, Russia, Salvador, Senegal, Slovak Republic, Syria, Switzerland, U.S.A., Yemen)
Sergey Zaikin, Olga Gulina, Alim Ulbashev, Natalia Shlykova
POINT OF VIEW
Andrey Medushevsky
LAW AND JUSTICE IN POLITICAL DEBATES OF THE POST-SOVIET PERIOD
Should the loyal citizen obey unlawful laws? What is the relationship between positive law and justice in the context of rapid social change? By which criteria are we to appreciate them? What are the views of professional lawyers, as well as those of different political opinions: conservatives, liberals, and ‘left-wingers’? To clarify the unsolved character of this question, and the growing divorce between positive law and the notion of justice in post-Soviet Russia, the author demonstrates the competitive character and variability of strategies for the juridical construction of reality regarding such key parameters as property relations, national identity, state and the political establishment. He presents his own vision of the rational combination of the legitimacy, legality and efficiency of juridical decisions in order to overcome the conflict of law and justice, legality and efficiency, and political reason and the social ideal.
Key words: reason; law; justice; property; national identity; social ideal; Post-Soviet debates.
Andrey Medushevsky – Professor of the National Research University – Higher School of Economics, member of the Russian Academy of Natural Sciences, Doctor of Philosophy.
medushevsky[at]stream.ru
FEATURE: TRANSFORMATION OF RUSSIAN FEDERALISM
Olga Kuznetsova
ECONOMIC ASPECTS OF FEDERAL RELATIONSHIPS IN RUSSIA
Economic relationships are an important component of federalism, particularly insofar as the practice of federalism can diverge from declared principles. This article analyses economic aspects of federal relationships between the center and regions in Russia, which account for a lot of the current activities of the Russian federal system.
Key words: federal reform; fiscal federalism; taxation; intergovernmental transfers; regional policy.
Olga Kuznetsova – Leading research associate at the Institute of Systems Analysis of the Russian Academy of Sciences, Professor of the Lomonosov Moscow State University, Doctor of Economics.
kouznetsova_olga[at]mail.ru
Irina Umnova
THE PROBLEMS OF FEDERAL DEGRADATION AND PERSPECTIVES FOR THE OPTIMIZATION OF THE CONTEMPORARY RUSSIAN MODEL OF THE DIVISION OF JURISDICTIONS AND POWERS IN THE CONTEXT OF THE SUBSIDIARITY DOCTRINE
The article considers the problems of federal degradation in Russia in the period following the adoption of the Russian Constitution 1993 in conditions of the imperfect Russian model of the division of jurisdictions and powers. The author underlines that fact that the development of the federal arrangement in Russia should be based on one key principle: subsidiarity. In comparison with European countries, Russia does not follow this principle. In these conditions, federal degradation reveals objective centralization, a misbalance between powers and financial resources, and the ineffectiveness of state power. From this point of view the author gives a critical survey of federal legislation in Russia and introduces some proposals for its improvement.
Key words: federalism; model of division of jurisdictions and powers; doctrine of subsidiarity; administrative reform; centralization; optimization of division of jurisdictions and powers.
Irina Umnova – Head of the Department of Constitutional Studies at the Russian Academy of Justice, Doctor of Law, Professor.
ikonyukhova[at]yandex.ru
BALANCING AND PROPORTIONALITY
Bernhard Schlink
PROPORTIONALITY
Famous German lawyer B. Schlink offers his analysis of the concept of proportionality in the context of the problem of balancing fundamental rights and public goals. He assumes that the principle of proportionality doesn’t have a standardizing effect on different constitutional cultures, but rather that it is a standard that constitutional cultures share and that it is something of which they become more and more aware; it is part of a deep structure of constitutional grammar that forms the basis of all different constitutional languages and cultures. It comes to the surface as constitutions grow in theoretical and practical meaning.
Key words: concept of proportionality; balancing; justice; fundamental rights; values; judicial activism.
Bernhard Schlink – Professor Emeritus of Public Law and Philosophy of Law at Humboldt University, Berlin, Germany.
bernhard.schlink[at]rz.hu-berlin.de
STANDARDS OF THE UNITED EUROPE
Valentina Lapaeva
CASE KONSTANTIN MARKIN V. RUSSIA IN THE CONTEXT OF THE PROBLEM OF NATIONAL SOVEREIGNTY
The article deals with a question regarding the transformation of the concept of state sovereignty under the effect of legal globalization. Attention is given to the determination of limits of interference of supranational structures (in particular, the European Court of Human Rights) in such a traditional sphere of state sovereignty as national legal regulation. The question of the relationship between the legal force of the Constitution of the Russian Federation and the Convention for the Protection of Human Rights and Fundamental Freedoms is examined through the example of a logical and legal analysis of the decision of the European Court of Human Rights in the case Konstantin Markin v. Russia.
Key words: state sovereignty; legal globalization; Constitution of the Russian Federation; European Convention on Human Rights and Fundamental Freedoms; Case Konstantin Markin v. Russia.
Valentina Lapaeva – Chief research associate at the Institute of State and Law of the Russian Academy of Sciences, Doctor of Law.
lapaeva07[at]mail.ru
ISSUES OF METHODOLOGY IN CONSTITUTIONAL LAW
Vladimir Sivitsky
COURSEWORK AS AN ELEMENT OF A COMPETENCY BUILDING APPROACH TO CONSTITUTIONAL LAW DISCIPLINES
The article describes the experience of the Law Faculty of the Higher School of Economics (St. Petersburg branch), where the requirements and format of the traditional coursework (term paper) in Constitutional Law were changed radically in terms of the competency building approach. The model of the coursework developed and implemented at the faculty is a kind of combination of two parts: the first part should provide for an analysis of the particular legal institution (theory) and the second part should be a case-note of one decision of the Constitutional Court related to the analyzed legal institution (practice). In the article, advantages and disadvantages of this model, as well as the assessment technique, are described. Such issues as the balance between lectures and seminars, as well as the incorporation of moot courts in the teaching plan, are also touched on by the author.
Key words: constitutional law disciplines; assessment criteria; coursework (term paper);lecture; methodological recommendations; written task; seminar; moot court.
Vladimir Sivitsky – Professor of the Chair of Constitutional and Administrative Law at the St. Petersburg branch of the National Research University – Higher School of Economics.
ccr-ilpp[at]mail.ru
Svetlana Mirolyubova
THE CONCEPTION OF А SCIENTIFIC-RESEARCH SEMINAR ON CONSTITUTIONAL LAW IN A MASTERS PROGRAM
The transfer to a four-level system of higher education led to the introduction of new masters programs on various directions of juridical science. The article presents the author’s conception of a scientific-research seminar on actual problems of constitutional law prepared for the masters program ‘Constitutional Law and Municipal Law’.
Key words: scientific-research seminar; competence; seminar forms; portfolio of the master.
Svetlana Mirolyubova – Associate Professor of the Chair of Constitutional Law, Deputy Dean of the Law Faculty of the St. Petersburg State University of Economics and Finance, Candidate of Law.
ralf99[at]yandex.ru
CASE LAW
Sergey Golubok
PRE-TRIAL DETENTION CENTRES AS A SYSTEMIC PROBLEM
The European Court of Human Rights has rendered another pilot judgment in a case against Russia. It concerns the systemic problem of degrading conditions of detention in pre-trial detention centres.
Key words: European Court of Human Rights; pilot judgments.
Sergey Golubok – Attorney-at-Law, St. Petersburg Bar Association, Candidate of Law.
sgolubok[at]gmail.com
CONSTITUTIONAL JUSTICE
Carlos Mesia Ramirez
CONSTITUTIONAL REVIEW IN THE JURISPRUDENCE OF THE CONSTITUTIONAL COURT OF PERU
The article analyses two landmark decisions of the Constitutional Court of Peru made in 2002 and 2003. To solve political conflict, the Court implemented the theory of law and established that any constitutional reform (revision of the text) should be conducted according to the provisions of the Constitution itself. Both decisions played a significant role in the democratization process which started after the fall of the Alberto Fukjimori dictatorship.
Key words: Constitutional Court of Peru; reform of constitution; unity of constitution; constituent power; people’s sovereignty.
Carlos Mesнa Ramнrez – President of the Constitutional Court of Peru.
Ilpp-ccr[at]mail.ru
Natalia Danilova
ON WAYS OF IMPLEMENTING THE FRENCH MODEL OF CONSTITUTIONAL JUSTICE INSTITUTIONS IN ASIA AND AFRICA
The article describes the emergence and evolution of constitutional justice institutions in countries that have chosen the French model of the constitutionality control system, as well as the main organizational and functional specifics of Asian & African constitutional councils, which make it possible to consider these institutions as a different way of realizing the model compared with France.
Key words: Constitutional council; constitutional justice; electoral disputes; juridical state; constitutional reform.
Danilova Natalia – Postgraduate student of the Chair of Constitutional and Municipal Law of the Law Faculty of the Lomonosov Moscow State University.
nat.v.danilova[at]gmail.com
IN THE RUSSIAN CONSTITUTIONAL COURT: DECISIONS AND COMMENTS
REVIEW OF THE DECISIONS OF THE RUSSIAN CONSTITUTIONAL COURT
November – December • 2011
Valeriya Dolgopolova
Sergey Belov
THE VALUE-BASED APPROACH TO THE ARGUMENTATION AS A FORM OF JUDICIAL ACTIVISM OF THE RUSSIAN CONSTITUTIONAL COURT
The article analyses jurisprudence of the Russian Constitutional Court on the matter of the ways and means of its decisions’ argumentation, especially with the social values approach. The author argues that the value-based approach is a form of judicial activism, and criticizes is as not complying with the principles of the Constitutional Court and its position in the system of state bodies. In the author’s view, the values argumentation of the Court’s decisions unacceptably replaces logical-rational argumentation.
Key words: judicial activism; Constitutional Court of Russia; constitutional values; legal values; constitutional review; human rights.
Sergey Belov – Associate Professor of the Chair of State and Administrative Law of the Law Faculty of the Saint-Petersburg State University, Candidate of Law.
belov.s[at]jurfak.spb.ru
RETROSPECTIVE REVIEW
Anton Zuykov
EXAMINATION BY DEMOCRACY: THE RUSSIAN PRESIDENTIAL ADMINISTRATION, 1993–1996
This article is a retrospective review of constitutional and political processes which happened in Russia in 1993–1996 with direct participation of the President’s Administration. Looking back to those events it is possible to realize the reasons for the step-by-step transformation of the role of the Administration in the system of government. The proposed review is just one fragment of the author’s bigger overall research of the 20-year evolution of such a controversial and powerful institution as the Administration of the Russian President. There is no doubt that today, at the beginning of а new constitutional phase – the second presidency of V. Putin – it could be very useful to refresh memories and make some conclusions.
Key words: Administration of the Russian President; the first Russian President; Chechen crisis; the Russian Constitution of 1993; political parties; parliament; elections 1993; elections 1995; elections 1996.
Anton Zuykov – Senior Legal Adviser of the Directorate of Legal Matters of OJSC “Gazprom Neft”, Candidate of Law.
law-msu[at]inbox.ru
REVIEWS
Bernd Wieser
REVIEW OF THE BOOK
HUMAN RIGHTS AND THE LAW-BOUND WELFARE STATE IN RUSSIA
Ed. by Е. А. Lukasheva
Мoscow, 2011
Bernd Wieser – Professor of the Institute for Austrian, European and Comparative Public Law, Political Science and Public Administration at the University of Graz, Austria.
bernd.wieser[at]uni-graz.at