CCR № 1 (146) 2022

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CONTENTS

CONSTITUTIONAL WATCH

DECEMBER • 2021 – JANUARY • 2022

Austria, Germany, Jordan, Portugal, Serbia, Slovenia, South Africa, USA

FEATURE: EU INTEGRATION PROJECT

THE CONFERENCE ON THE FUTURE OF EUROPE: POSSIBLE SCENARIOS OF THE FORTHCOMING EUROPEAN PERESTROIKA

Andrey Medushevsky

A Pan-European discussion on the future of Europe was officially initiated by European authorities after Brexit – the shocking decision by the UK to withdraw from the European Union after its referendum of June 23, 2016. This debate covered all the most vital aspects of the European integration project: the nature of European identity, the prospects for integration, democracy deficits, the future of multi-layer constitutionalism, mechanisms of power and the decision-making process, conflicts between European institutions and national governments and elites, and the problem of uneven European leadership. At the core of the debate is the question of the legitimacy of the whole integration project – the eroding support for that idea in society and among elites and experts; the growing divide between Euro-optimist, Euro-pessimist, and Euro-realist trends; and the varying interpretations of an “ever closer union”. These varying directions within the EU establishment demonstrated by this discussion create a pressing need to find some common, compromise solutions between European elites on such questions as the renovation of the European project, the scope of amendments to the foundational treaties, delineation of alternative strategies of reforms, and a choice between different future options and potential outcomes. In some way, this problem-set is similar to that of the Soviet Union’s Perestroika debates. The main institutional vehicle for developing this European constitutional reform program was a two-year All-European Conference on the Future of Europe initiated in 2019 by the European institutions of Parliament, Council and Commission as well as by leaders of some European countries. This Conference, projected initially for 2020, was postponed because of the pandemic and finally opened in Strasbourg on the Day of Europe (May 9, 2021) under the auspices of the EU’s leaders. However, in spite of all its exaggerated expectations, the Conference still has not produced any clear vision of Europe’s future and has not succeeded in mobilizing and coordinating the broad spectrum of European civil organizations and political forces which represent quite different visions of the integration process and ways to implement it. Why has this been the result and what is its meaning for the legitimacy of the European Project? The goal of this article is to understand the potential of the Conference for the future transformation/Perestroika of the EU and to analyze the polar opposite visions of its future, the contradictions underlying this event, and possible outcomes for the constitutional reestablishment of the European integration project.

CONSTITUTIONAL DISCOURSE: CONCEPTS AND APPROACHES

CONSTITUTIONS, COLLECTIVE IDENTITY AND CONSTITUTIONAL IDENTITY: WHERE SHOULD WE BE HEADING?

Alexander Blankenagel

Identity, as it seems, is being searched for all over the place. The changes of the Russian constitution of 2020 excel with an abundance of regulations of elements of the collective identity of the Russian society, elements that as it seems are striving for a renaissance of the traditional Russian/Soviet society. Even earlier the concept of constitutional identity had become, in the last 10 years, very popular in the judicial practice of the European constitutional courts. The national constitutional courts use the topos of constitutional identity to fight off, as they see it, improper intrusion of international law into their national legal systems, of the EU law as well as of the European Convention of Human Rights as interpreted by the European Court of Human Rights. Functionally this is an equivalent of the amendments of the Russian constitution mentioned above. A more thorough analysis shows, that the reference to constitutional identity by the constitutional courts and the search for its possible content sometimes really touches upon very basic questions, but very often just creates a nontransparent veil, with which to hide the true reasons of the decision. The analysis also shows that constitutional identity is a superfluous concept: Constitutions are enabled to fight off improper intrusion of international law into the national legal system without referring to some nebulous constitutional identity. The European Court of Justice and the European Court of Human Rights are confronted with the opposite problem: How much homogeneity and how much integration may they impose upon the respective member-states? But this has very little in common with the constitutional identity that the national constitutional courts are so happy to refer to. The reasoning with constitutional identity is doubtful for other reasons as well. The reference to some “identity” – and in the follow-up to some constitutional identity – induces the addressee to think that this is a scientific and, in consequence, a not disputed concept, which implies the impossibility of the given social actor or institution to change. Sociological and psychological theories of individual and collective identity, on the contrary, consider identity as the pliable and changeable result of an interaction, in which the self-perception of the given social actor – be it an individual or a collective – and the expectations of other social actors towards him or her are melted into his/her negotiated and situational identity. This identity will be created anew in every new social interaction. In consequence there are a lot of good and weighty reasons, for constitutional courts and constitutional scholars, to refrain from the use of “constitutional identity” as a legal/constitutional concept. As far as the regulation of (traditional) elements of collective identity in constitutions is concerned, this is an intrusion of the state or the ruling elites into the interactive self-definition of society and, as the author thinks, the try to slow down the process of modernization of the Russian society.

LEGAL DIMENSION OF POLITICAL REGIMES

LEGAL REFORMS AS A TOOL OF MANAGING MEANINGS IN THE POLISH PUBLIC SPHERE

Vasily Zagretdinov

This study addresses patterns of Polish political and legal practice. The author deliberately avoids analyzing reforms of the judiciary and other institutions of power and focuses instead on reforms in the public sphere. The choice of Poland as an object of research is not accidental. Poland and Russia demonstrate a dialectical connection. On the one hand, Poland and Russia are on opposite sides of the newly drawn line of geopolitical confrontation. On the other hand, despite their rather intense political confrontation, Poland and Russia demonstrate many similarities in their practice of governance in the public space. At the same time, despite their dramatic shifts in geopolitical pathways, they ironically continue to play an important role in each other’s existence due to inextricable historical ties. At the same time, this study is not focused on the classic research topic of populism, which is traditionally investigated in reforms of judicial and quasi-judicial institutions. On the contrary, the author draws attention to reforms in the public sphere. These reforms, according to the author, are an indirect way of regulating society by a populist leader. At first glance, not all of the examples studied lie within the sphere of classical constitutional and legal regulation. However, they nevertheless relate to the sphere of social relations in regulation of governmental and social activities that constitute the realm of public affairs and ultimately are a subject of constitutional law. The article will follow the practices of managing meaning by reforms affecting public meetings, security (including extrajudicial collection of information), sex education, artificial termination of pregnancy, media control and national memory management. All of these means are employed by the Polish government to cement convenient public discourse. According to the author, the mechanisms used by the Polish authorities are no less effective from the point of view of state management. These methods are also more beneficial to the authorities themselves by virtue of their mediation they are less subject to critical evaluation, while retaining the possibility of subsequent formal control.

LAW AND RELIGION

ACCREDITATION OF THE ACTIVITIES OF MINISTERS AS A MECHANISM FOR COUNTERACTING RELIGIOUS EXTREMIST IDEOLOGY: FRIENDS AMIDST FOES OR FOES AMIDST FRIENDS?

Igor Pibaev

The tendency that has emerged in Russia over the past years towards strengthening control over the regulation of activities of religious associations has led to significant changes in the regulation of freedom of religion by creating mechanisms (sets of requirements) intended to prevent the spread of religious extremist ideology by clerics. The author examines the accreditation of clergy by public authorities in two different aspects: local and cross-border. An attempt is made to compare Russian and foreign innovations aimed at protecting national security. The second section of the article analyzes the Russian experience of local accreditation. The third section focuses on the experience of countries with the largest percentage of Islamic populations — France, Germany and Bulgaria. In the fourth section, special attention is paid to the study of the legislation and practice of those states (Turkey, Algeria, Egypt) that send Islamic clerics abroad or provide an opportunity for them to receive religious education. As a result, the author, having considered a wide range of methods of accreditation of the religious activities of clergy, formulates optimal mechanisms for reducing negative foreign influence in the religious sphere and for satisfying Muslims’ needs for trained Imams.

SOCIOLOGY OF LAW

PARTICIPATION OF THE JUDICIARY IN SHAPING SALARY LEVELS IN RUSSIA (A POLITICAL SCIENCE ANALYSIS OF INDIVIDUAL COURT DECISIONS)

Fedor Voskresenskii

This article describes the participation of the judiciary in shaping the level of salary of Russian citizens through a political analysis of individual court decisions. The author took two sets of court cases, each having a single subject matter which was seen through the prism of judges’ perceptions at different levels of the judicial system. The first case involves a conflict between management and ambulance medical workers over remuneration issues. The second case arises from a dispute over the calculation of wages of persons working in special climatic conditions. The key element of both cases is their economic component, which affects a wide range of stakeholders and illustrates the economic conflict between society and the State, which is very relevant for Russia. One of the main reasons for the depression and demographic collapse in the country is the extremely low level of salary. It does not ensure normal reproduction of the labor force and the population as a whole. The article’s conclusion is that when conflicts arise between the State and the individual, the courts prefer to rely on formal normative models of the relationship between them. They define the rights of the individual in the framework of sometimes difficult to distinguish and rather harsh frameworks set by the ruling political regime. These include whole sets of normative acts that give the prerogative in determining the scope of rights to state authorities. The courts, having before them a wide alternative spectrum of possible maneuvers in terms of normative material for use when conflicts arise, instead choose the simplest justifications, repeating the reasoning of the Executive agencies opposing the individual parties in the case.

SCHOLAE

PRELIMINARY CONSTITUTIONAL CONTROL OF LAWS IN THE CONSTITUTIONAL HISTORY OF RUSSIA: HAS THERE BEEN CONTINUITY?

Irina Galyaeva

Ascertainment of the historical basis of the 2020 Constitutional reforms is as important as studying the constitutional amendments themselves. In this connection it’s necessary to evaluate the experience of the functioning of preliminary constitutional control, authority for which is vested in the Constitutional Court of Russia. This research provides two main conclusions. First, even if this kind of control or review had been regulated by law, it was not exercised, either by the Governing Senate of the Russian Empire or the Committee of Constitutional Review of the USSR. Second, in the Soviet and Post-Soviet history of Russia there were cases of using preliminary constitutional control as special non-judicial methods of overseeing laws’ constitutionality, with control exercised by standing commissions of Soviet representative bodies and then formal preliminary oversight of laws exercised by the President of Russia in the 1990s). However, in Russia’s latest constitutional history this institution is not favored. There has been the direct prohibition of preliminary constitutional control in regard to the Constitutional Court of the RSFSR, the judiciary’s negative attitude towards this institution during drafting of the Law on the Constitutional Court of the Russian Federation, and the established practice of the Constitutional Court of the Russian Federation on the inadmissibility of preliminary control of federal and regional laws. At the level of the constituent entities of the Russian Federation, despite the establishment of a sufficient number of constitutional (charter) courts and their relatively long-term activity, their preliminary constitutional control of the laws of the constituent entities of the Russian Federation has not happened. After the constitutional reform of 2020, preliminary non-judicial control or review of the laws of the constituent entities of the Russian Federation can be implemented when constituent entities of the Russian Federation create constitutional (charter) councils attached to regional legislative government bodies, but delineation by the Russian Constitutional Court of the relevant competence will be required. Concerning the factors reviewed here, it appears that preliminary constitutional control as introduced in our country does not have a historical basis in relation to our institutions. Moreover, it appears that the strong negative attitude to preliminary constitutional review that exists in our country can preclude its broad implementation.

IN THE RUSSIAN CONSTITUTIONAL COURT

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT JUDGMENTS NOS. 49‑P – 55-P • 2021

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT RULINGS NOS. 2355-O, 2358-O, 2642-O, 2647-O, 2650-O • 2021