Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2019-6-4-15
{"title":"Constitutional watch: October – November 2019","authors":"","doi":"10.21128/1812-7126-2019-6-4-15","DOIUrl":"https://doi.org/10.21128/1812-7126-2019-6-4-15","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"20 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":"117132646","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: 10.21128/1812-7126-2021-2-4-14
Brazil, Czech Republic, France, India, Israel, Portugal, Slovenia, Switzerland
巴西，捷克共和国，法国，印度，以色列，葡萄牙，斯洛文尼亚，瑞士
{"title":"Constitutional watch: February – March 2021","authors":"","doi":"10.21128/1812-7126-2021-2-4-14","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-2-4-14","url":null,"abstract":"Brazil, Czech Republic, France, India, Israel, Portugal, Slovenia, Switzerland","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"82 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":"121846402","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: 10.21128/1812-7126-2021-5-76-117
Elena Gritsenko
The differences in the interpretation of the direct effect of a constitution are mainly caused by the peculiarities of understanding the essence of the constitution and the rule of law, the relation between the national, supranational and international law in a legal system, the specifics of the perceived constitutional concept of basic rights, the limits of private autonomy and the action of constitutional rights in public and private relations. Furthermore, a model of constitutional review and the national judicial system play a key part. The American approach, based on the distinction between common law and constitutional law, creates difficulties in the constitutionalization of the common law. These problems, along with the peculiarities of American federalism, are reflected in the state action doctrine as a tool outlining the mechanisms and limits of constitutional rights and the state’s duties to protect them. However, the solution of the question about the horizontal application of the Constitution depends, rather, not on objective criteria, but the discretion of the court. A different model of the direct action of the Constitution and basic rights has been developed in the German legal system. The Federal Constitutional Court of Germany opened the way for the constitutionalization of sectoral legislation, as well as for the recognition of the mediated horizontal action of constitutional rights in private relations. Post-socialist states developing within the continental legal family, mostly without any reservations, accepted the idea of direct action of the Constitution and fundamental rights in vertical and horizontal relations. This is largely due to the socialist tradition: the Constitution is not perceived as an act addressed to the state, but is regarded as an act addressed to the whole society. In this regard, the current Russian Constitution enshrines the universal obligation for public and private actors to observe the Constitution and allows it to be applied in private relations. The principle of the direct effect requires the court to detect possible conflicts and solve them, using available constitutional means. This mechanism of courts applying the Constitution still needs fine-tuning. In this regard, the issue of ensuring that courts apply the Constitution continues to be a challenge for Russia.
{"title":"Direct Effect of the Constitution: Specific Features of the Russian Model from a Comparative Perspective","authors":"Elena Gritsenko","doi":"10.21128/1812-7126-2021-5-76-117","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-5-76-117","url":null,"abstract":"The differences in the interpretation of the direct effect of a constitution are mainly caused by the peculiarities of understanding the essence of the constitution and the rule of law, the relation between the national, supranational and international law in a legal system, the specifics of the perceived constitutional concept of basic rights, the limits of private autonomy and the action of constitutional rights in public and private relations. Furthermore, a model of constitutional review and the national judicial system play a key part. The American approach, based on the distinction between common law and constitutional law, creates difficulties in the constitutionalization of the common law. These problems, along with the peculiarities of American federalism, are reflected in the state action doctrine as a tool outlining the mechanisms and limits of constitutional rights and the state’s duties to protect them. However, the solution of the question about the horizontal application of the Constitution depends, rather, not on objective criteria, but the discretion of the court. A different model of the direct action of the Constitution and basic rights has been developed in the German legal system. The Federal Constitutional Court of Germany opened the way for the constitutionalization of sectoral legislation, as well as for the recognition of the mediated horizontal action of constitutional rights in private relations. Post-socialist states developing within the continental legal family, mostly without any reservations, accepted the idea of direct action of the Constitution and fundamental rights in vertical and horizontal relations. This is largely due to the socialist tradition: the Constitution is not perceived as an act addressed to the state, but is regarded as an act addressed to the whole society. In this regard, the current Russian Constitution enshrines the universal obligation for public and private actors to observe the Constitution and allows it to be applied in private relations. The principle of the direct effect requires the court to detect possible conflicts and solve them, using available constitutional means. This mechanism of courts applying the Constitution still needs fine-tuning. In this regard, the issue of ensuring that courts apply the Constitution continues to be a challenge for Russia.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"4 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":"122058389","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: 10.21128/1812-7126-2020-3-63-81
Sergei Manzhosov
{"title":"Theory and practice of rotation in office: whose traditions does Russia follow?","authors":"Sergei Manzhosov","doi":"10.21128/1812-7126-2020-3-63-81","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-3-63-81","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"25 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":"134071054","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: 10.21128/1812-7126-2021-2-192-203
{"title":"Review of legal reasoning in the Russian Constitutional Court judgments: Nos.4-P – 9-P (2021)","authors":"","doi":"10.21128/1812-7126-2021-2-192-203","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-2-192-203","url":null,"abstract":"","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":"131020889","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: 10.21128/1812-7126-2021-3-17-38
A. Salenko
The main purpose of the article is to analyze the content of dissenting opinions of the judges of the Constitutional Court of Russia regarding the implementation of freedom of peaceful assembly. The author concluded that in 2009–2020, there were three judgements (postanovlenie) and one decision (opredelenie) by the Constitutional Court of Russia (hereinafter also referred to as the CCR) that were accompanied by dissenting opinions of CCR judges. In 2013, one single judgment of the CCR was accompanied by three dissenting opinions. This research analyzes the six dissenting opinions of the judges of the Russian Constitutional Court, which considered various problematic issues regarding the implementation of freedom of peaceful assembly in the contemporary Russian Federation. The author also analyzes the role and significance of the dissenting opinions in the context of amendments to the Russian Constitution in 2020, and changes in legislation that significantly limited the publicity of dissenting opinions of CCR judges. This article shows the role of dissenting opinions as: a means to raising the level of legal consciousness in society, a guarantee of a fair and open trial, a guarantee of the independence of judiciary and judicial democracy, and a means of improving legislation and law enforcement practice. The author concludes that the CCR judges’ dissenting opinions could in some cases be regarded as “sleeping law”, because the European Court of Human Rights later confirmed the judges’ minority report in findings. The article uses traditional research methods such as analysis, synthesis, induction, deduction, logical method, and comparative legal methods. The author expresses that it is necessary to keep the democratic tradition of constitutional justice, which allowed the publicity of dissenting opinions of CCR judges during 1991–2020. It is also concluded that the dissenting opinions of the Constitutional Court judges enable a deeper understanding of the political and legal nature, features, and main stages of the development of Russian public assembly law, one of direct democracy’s most important institutions alongside elections and referendums. The author argues that dissenting opinions of the judges of the Constitutional Court of Russia make it possible to identify gaps and defects in the legal regulation of public events in Russia. The study was funded by the Russian Foundation for Basic Research (RFBR) and the Expert Institute for Social Research (EISR) in the framework of the research project no.20-011-31740.
{"title":"Dissenting opinions on the freedom of peaceful assembly","authors":"A. Salenko","doi":"10.21128/1812-7126-2021-3-17-38","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-3-17-38","url":null,"abstract":"The main purpose of the article is to analyze the content of dissenting opinions of the judges of the Constitutional Court of Russia regarding the implementation of freedom of peaceful assembly. The author concluded that in 2009–2020, there were three judgements (postanovlenie) and one decision (opredelenie) by the Constitutional Court of Russia (hereinafter also referred to as the CCR) that were accompanied by dissenting opinions of CCR judges. In 2013, one single judgment of the CCR was accompanied by three dissenting opinions. This research analyzes the six dissenting opinions of the judges of the Russian Constitutional Court, which considered various problematic issues regarding the implementation of freedom of peaceful assembly in the contemporary Russian Federation. The author also analyzes the role and significance of the dissenting opinions in the context of amendments to the Russian Constitution in 2020, and changes in legislation that significantly limited the publicity of dissenting opinions of CCR judges. This article shows the role of dissenting opinions as: a means to raising the level of legal consciousness in society, a guarantee of a fair and open trial, a guarantee of the independence of judiciary and judicial democracy, and a means of improving legislation and law enforcement practice. The author concludes that the CCR judges’ dissenting opinions could in some cases be regarded as “sleeping law”, because the European Court of Human Rights later confirmed the judges’ minority report in findings. The article uses traditional research methods such as analysis, synthesis, induction, deduction, logical method, and comparative legal methods. The author expresses that it is necessary to keep the democratic tradition of constitutional justice, which allowed the publicity of dissenting opinions of CCR judges during 1991–2020. It is also concluded that the dissenting opinions of the Constitutional Court judges enable a deeper understanding of the political and legal nature, features, and main stages of the development of Russian public assembly law, one of direct democracy’s most important institutions alongside elections and referendums. The author argues that dissenting opinions of the judges of the Constitutional Court of Russia make it possible to identify gaps and defects in the legal regulation of public events in Russia. The study was funded by the Russian Foundation for Basic Research (RFBR) and the Expert Institute for Social Research (EISR) in the framework of the research project no.20-011-31740.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"109 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":"124941296","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: 10.21128/1812-7126-2021-3-158-180
{"title":"Review of legal reasoning in the Russian Constitutional Court judgments: Nos. 10-P – 19-P (2021)","authors":"","doi":"10.21128/1812-7126-2021-3-158-180","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-3-158-180","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"94 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":"125198802","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: 10.21128/1812-7126-2019-5-90-112
S. Sheverdyaev, Alina Shenfeldt
{"title":"The specifics of the evolution of the concept of political corruption in Western and Russian political and legal discourse","authors":"S. Sheverdyaev, Alina Shenfeldt","doi":"10.21128/1812-7126-2019-5-90-112","DOIUrl":"https://doi.org/10.21128/1812-7126-2019-5-90-112","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"59 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":"121969679","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: 10.21128/1812-7126-2020-4-55-79
A. Chirninov
{"title":"When political questions and constitutional justice meet: the starting points of argumentation in a comparative perspective","authors":"A. Chirninov","doi":"10.21128/1812-7126-2020-4-55-79","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-4-55-79","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":"127312586","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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