Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2019-6-121-136
Oleksandr Yevsieiev
{"title":"How the Constitutional Court of Ukraine “judges” History. Commentary to the judgment of the Constitutional Court of Ukraine, adopted July 16, 2019 no. 9-r/2019","authors":"Oleksandr Yevsieiev","doi":"10.21128/1812-7126-2019-6-121-136","DOIUrl":"https://doi.org/10.21128/1812-7126-2019-6-121-136","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124377396","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2020-5-56-73
I. Pibaev
The main characteristics of the European approach to the understanding of state secularism in many respects is based on the interpretations of Article 9 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms by the European Court of Human Rights are, on the one hand, private freedom of faith, civil and political equality of citizens regardless of their confession, and non-discrimination, and on the other, the autonomy of religious communities from the state and the non-interference of religious organizations in public governance. The article shows the special way these values were implemented in the Italian state from the moment of drafting and adoption of the Constitution in 1947 to the present time. We analyze the judgments of the Constitutional Court of Italy interpreting articles 2, 3, 7, 8, 17, 19 and 20 of the Constitution of Italy on freedom of faith and the relationship between the Roman Catholic Church and other religious communities of Italy with state authorities of the Republic of Italy. The author underlines the characteristic features of Italian secularism, including the principle of “bi-lateralization” providing for the possibility of combining the principle of separation of church and state with the bilateral agreement between the state and religious communities. In the article we try to answer to the questions of how, after the revision of the Lateran Concordat in 1984, the position changed of the Catholic religion, which previously was the state religion, and what role the Constitutional Court of Italy played in this change. Finally, the author concludes that the judgments of the Constitutional Court of Italy de jure promoted centrality and impartiality of all confessions to a great extent, but de facto the problem of realization of the principle of equality still exists, with the Roman Catholic Church preserving its dominant position in political life.
{"title":"The principle of secularism of the state in the decisions of the Constitutional Court of Italy: all roads lead to Rome","authors":"I. Pibaev","doi":"10.21128/1812-7126-2020-5-56-73","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-5-56-73","url":null,"abstract":"The main characteristics of the European approach to the understanding of state secularism in many respects is based on the interpretations of Article 9 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms by the European Court of Human Rights are, on the one hand, private freedom of faith, civil and political equality of citizens regardless of their confession, and non-discrimination, and on the other, the autonomy of religious communities from the state and the non-interference of religious organizations in public governance. The article shows the special way these values were implemented in the Italian state from the moment of drafting and adoption of the Constitution in 1947 to the present time. We analyze the judgments of the Constitutional Court of Italy interpreting articles 2, 3, 7, 8, 17, 19 and 20 of the Constitution of Italy on freedom of faith and the relationship between the Roman Catholic Church and other religious communities of Italy with state authorities of the Republic of Italy. The author underlines the characteristic features of Italian secularism, including the principle of “bi-lateralization” providing for the possibility of combining the principle of separation of church and state with the bilateral agreement between the state and religious communities. In the article we try to answer to the questions of how, after the revision of the Lateran Concordat in 1984, the position changed of the Catholic religion, which previously was the state religion, and what role the Constitutional Court of Italy played in this change. Finally, the author concludes that the judgments of the Constitutional Court of Italy de jure promoted centrality and impartiality of all confessions to a great extent, but de facto the problem of realization of the principle of equality still exists, with the Roman Catholic Church preserving its dominant position in political life.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127510765","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2019-5-15-33
Ilya Shablinsky
{"title":"Models of Russian Parliamentarism","authors":"Ilya Shablinsky","doi":"10.21128/1812-7126-2019-5-15-33","DOIUrl":"https://doi.org/10.21128/1812-7126-2019-5-15-33","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128178904","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2021-4-41-67
Valentina I. Chekharina
The COVID-19 pandemic became widespread across the world throughout 2020 and 2021 in an emergency that gravely impacted the health and lives of people around the world. States have taken exceptional measures to combat the pandemic, including controversial decisions to introduce emergency regimes, which have been questioned in regards to their compliance with constitutional regulations. The fight against the COVID-19 pandemic requires special measures, however they must remain within the constitutional framework. Consequently, the pandemic and its effect upon the legality of regimes in a state of emergency has captured the attention of legal scholars. The aim of this study is to analyse the constitutional regulation of the state of emergency in the Republic of Poland which was introduced in the country during the COVID-19 pandemic. In Poland, an emergency regime was introduced following an order by the Minister of Health. However the state of emergency (here, natural disaster) as stated by the Constitution was not introduced, although, according to analysts, some state bodies and officials had confirmed that all the necessary conditions for this were met. On 2 March 2020, the so-called Special Law on Coronavirus was adopted, followed by other regulations to fight the pandemic. These analysts stated that the measures introduced by the new acts corresponded to a legal regime containing the constitutional characteristics of a state of emergency, but lacked the appropriate constitutional procedure for their introduction. Presidential elections were held at this time, however legally they cannot be held during a state of emergency, as it indicates the presence of political interests in the choice of the regime. The unconstitutional procedure of the introduction of emergency measures alongside their characteristics of the state of emergency make it possible to consider the epidemic regime introduced in Poland a “hybrid” state of emergency, which is not detailed by the Constitution or legislation. On this basis, the study concludes that reasons behind the unconstitutional response to the COVID-19 pandemic in Poland can be found in both the Constitution, and in the manifestations of the crisis of the constitutional and legal system, which began with the reform of Poland’s Constitutional Tribunal by the ruling Law and Justice party in 2015.
{"title":"State of emergency in Poland: constitutional regulation and “hybrid” nature during the COVID-19 pandemic","authors":"Valentina I. Chekharina","doi":"10.21128/1812-7126-2021-4-41-67","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-4-41-67","url":null,"abstract":"The COVID-19 pandemic became widespread across the world throughout 2020 and 2021 in an emergency that gravely impacted the health and lives of people around the world. States have taken exceptional measures to combat the pandemic, including controversial decisions to introduce emergency regimes, which have been questioned in regards to their compliance with constitutional regulations. The fight against the COVID-19 pandemic requires special measures, however they must remain within the constitutional framework. Consequently, the pandemic and its effect upon the legality of regimes in a state of emergency has captured the attention of legal scholars. The aim of this study is to analyse the constitutional regulation of the state of emergency in the Republic of Poland which was introduced in the country during the COVID-19 pandemic. In Poland, an emergency regime was introduced following an order by the Minister of Health. However the state of emergency (here, natural disaster) as stated by the Constitution was not introduced, although, according to analysts, some state bodies and officials had confirmed that all the necessary conditions for this were met. On 2 March 2020, the so-called Special Law on Coronavirus was adopted, followed by other regulations to fight the pandemic. These analysts stated that the measures introduced by the new acts corresponded to a legal regime containing the constitutional characteristics of a state of emergency, but lacked the appropriate constitutional procedure for their introduction. Presidential elections were held at this time, however legally they cannot be held during a state of emergency, as it indicates the presence of political interests in the choice of the regime. The unconstitutional procedure of the introduction of emergency measures alongside their characteristics of the state of emergency make it possible to consider the epidemic regime introduced in Poland a “hybrid” state of emergency, which is not detailed by the Constitution or legislation. On this basis, the study concludes that reasons behind the unconstitutional response to the COVID-19 pandemic in Poland can be found in both the Constitution, and in the manifestations of the crisis of the constitutional and legal system, which began with the reform of Poland’s Constitutional Tribunal by the ruling Law and Justice party in 2015.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134629356","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2021-4-97-121
A. Kondrashev
The article examines the institution of a “foreign agent” that appeared in Russian legislation in 2012. The author, analyzing American legislation, the position of the Venice Commission, the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe (hereinafter — the OSCE/ODIHR), the decisions of the Constitutional Court of the Russian Federation, as well as the existing Russian judicial practice, comes to the conclusion that ’misappropriation’ status of a foreign agent by the Ministry of Justice of Russia for non-profit organizations (hereinafter — NPOs) occurs in the absence of clear legal definition of the term “political activity”, does not correlate with the identification of the real connection and activities of NPOs on the order or instruction of a foreign donor, and is actually applied in those cases when it comes to appeals to government agencies, criticism of government agencies or assessment of their decisions. All this indicates that the purpose of the restrictions imposed by the state was by no means a desire to ensure transparency and openness through access to information about foreign financing of non-profit organizations, but rather the purpose was to politically stigmatize and impose additional organizational and financial burdens on NPOs, which dare to criticize the authorities. The author advocates the complete abolition of this institution of a foreign agent, since the pre-existing Russian legislation already made it possible to exercise control over the financing and activities of NPOs. The expansion of the number of types of foreign agents, introduced since December 2019 (first in terms of recognition by media as foreign agents), led by December 2020 to the appearance in Russian legislation of individuals of foreign agents and foreign agents-unregistered public associations and even greater and disproportionate restrictions on the constitutional the right to association. Moreover, the status of a “foreign agent” (in relation to a candidate for an elective office and a candidate affiliated with an acting foreign agent) is supposed to be introduced into the electoral legislation with the obvious goal of political stigmatization of persons trying to exercise their passive electoral right.
{"title":"Foreign agents in Russia: How a borrowed American legal institute acquired a different sense in Russian legislation and law enforcement practices","authors":"A. Kondrashev","doi":"10.21128/1812-7126-2021-4-97-121","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-4-97-121","url":null,"abstract":"The article examines the institution of a “foreign agent” that appeared in Russian legislation in 2012. The author, analyzing American legislation, the position of the Venice Commission, the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe (hereinafter — the OSCE/ODIHR), the decisions of the Constitutional Court of the Russian Federation, as well as the existing Russian judicial practice, comes to the conclusion that ’misappropriation’ status of a foreign agent by the Ministry of Justice of Russia for non-profit organizations (hereinafter — NPOs) occurs in the absence of clear legal definition of the term “political activity”, does not correlate with the identification of the real connection and activities of NPOs on the order or instruction of a foreign donor, and is actually applied in those cases when it comes to appeals to government agencies, criticism of government agencies or assessment of their decisions. All this indicates that the purpose of the restrictions imposed by the state was by no means a desire to ensure transparency and openness through access to information about foreign financing of non-profit organizations, but rather the purpose was to politically stigmatize and impose additional organizational and financial burdens on NPOs, which dare to criticize the authorities. The author advocates the complete abolition of this institution of a foreign agent, since the pre-existing Russian legislation already made it possible to exercise control over the financing and activities of NPOs. The expansion of the number of types of foreign agents, introduced since December 2019 (first in terms of recognition by media as foreign agents), led by December 2020 to the appearance in Russian legislation of individuals of foreign agents and foreign agents-unregistered public associations and even greater and disproportionate restrictions on the constitutional the right to association. Moreover, the status of a “foreign agent” (in relation to a candidate for an elective office and a candidate affiliated with an acting foreign agent) is supposed to be introduced into the electoral legislation with the obvious goal of political stigmatization of persons trying to exercise their passive electoral right.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134422729","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2021-3-39-62
O. Belosludtsev
This article consists of three sections. The author firstly considers the problem of ambiguity of the term “identity”, as well as its relationship with related concepts. Following from this, the main approaches to the genesis and nature of constitutional identity, including alternative interpretations are considered. The question of the nature of constitutional identity, according to the author, is of fundamental importance for the theory. The author tries to consider both traditional (positivist) and alternative points of view on this issue. In the third paragraph, the author tries to demonstrate the influence of several factors determined by national culture (constructing constitutional identity) on the formation of constitutional identity. Based on the generalization of the theoretical and legal works of R.Hirschl, G.J.Jacobsohn, M.Rosenfeld, and M.Tushnet, the author attempts to identify such independent factors as religion, politics, history, and constitutional disharmony. According to the author, the unique combination of these factors, inherent in each culture of “local” circumstances, determines the uniqueness of any national constitutional identity. The author believes that the Russian science of constitutional and international law is excessively focused on positivist interpretations of constitutional identity. Alternative approaches to the conceptualization of constitutional identity remain absent in much of the work of other researchers.
{"title":"Legal-theoretical nature of the concept of constitutional identity","authors":"O. Belosludtsev","doi":"10.21128/1812-7126-2021-3-39-62","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-3-39-62","url":null,"abstract":"This article consists of three sections. The author firstly considers the problem of ambiguity of the term “identity”, as well as its relationship with related concepts. Following from this, the main approaches to the genesis and nature of constitutional identity, including alternative interpretations are considered. The question of the nature of constitutional identity, according to the author, is of fundamental importance for the theory. The author tries to consider both traditional (positivist) and alternative points of view on this issue. In the third paragraph, the author tries to demonstrate the influence of several factors determined by national culture (constructing constitutional identity) on the formation of constitutional identity. Based on the generalization of the theoretical and legal works of R.Hirschl, G.J.Jacobsohn, M.Rosenfeld, and M.Tushnet, the author attempts to identify such independent factors as religion, politics, history, and constitutional disharmony. According to the author, the unique combination of these factors, inherent in each culture of “local” circumstances, determines the uniqueness of any national constitutional identity. The author believes that the Russian science of constitutional and international law is excessively focused on positivist interpretations of constitutional identity. Alternative approaches to the conceptualization of constitutional identity remain absent in much of the work of other researchers.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124323467","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2021-3-4-16
Albania, Belarus, Germany, India, Italy, Kyrgyz Republic, Moldova, Russia, South Africa, USA
阿尔巴尼亚、白俄罗斯、德国、印度、意大利、吉尔吉斯共和国、摩尔多瓦、俄罗斯、南非、美国
{"title":"Constitutional watch: April – May 2021","authors":"","doi":"10.21128/1812-7126-2021-3-4-16","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-3-4-16","url":null,"abstract":"Albania, Belarus, Germany, India, Italy, Kyrgyz Republic, Moldova, Russia, South Africa, USA","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"20 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123538217","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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