CCR № 2 (141) 2021

Available only in Russian

Price 1100.00 rub.

CONTENTS

CONSTITUTIONAL WATCH

FEBRUARY – MARCH • 2021

Brazil, Czech Republic, France, India, Israel, Portugal, Slovenia, Switzerland

THEORY OF CONSTITUTIONALISM

PROBLEMS OF THE CONCEPT “GUARANTOR OF THE CONSTITUTION”

Mikhail Krasnov

The article critically analyses the concept of “guarantor of the constitution”. Briefly describing the history of the emergence of the concept, the author argues that it was originally understood too narrowly — only as a function of ensuring the stable functioning of the state apparatus. This is also how it is understood today. Meanwhile, even if the state apparatus is formally operating legally, this does not always mean that its operation is consistent with constitutional principles and values. The constitution is not simply an act of supreme legal force. It is imbued with constitutionalism, which boils down to the idea and practice of limiting power for the sake of the value of human dignity. In its turn, constitutionalism is secured by a number of principles and values, including pluralism. However, constitutionalism can also suffer from pluralism. The article speaks of two threats on this side: first, large-scale inter-party conflicts (both direct and “disguised” as conflicts between state bodies) and, second, the possibility of a political force aligned against constitutionalism gaining state power.

METAMORPHOSIS OF THE RUSSIAN CONSTITUTION

CONSTITUTIONAL RIGHTS AND FREEDOMS IN THE THIRD RUSSIAN POST-SOVIET REPUBLIC

Irina Alebastrova

The main idea of the article is that most provisions of the amendment to the Russian Constitution, which was adopted in 2020, affect constitutional human rights in one way or another and limit them. The changes made by the amendment to the configuration of the state powers and the legal status of a man and the citizen, are so significant that the model of the Russian state organization installed after its introduction can be considered the third post-Soviet republic. We believe that the first post-Soviet republic was existing during the 90-s years of the XX century in our country. It was characterized by a significant commitment to the European standards. The second one covered the first two decades of the XXI century. It was characterized by the struggle of two inertial mechanisms: the new democratic one, which was launched in the period of the first republic, and the old dictatorial one, which did not cease to operate, and it has grown stronger while the new Russian political leadership was relying on it. The period of the third post-Soviet Russian Republic, which began together with the amendment-2020 to the Constitution, is characterized by the prevalence of elements of the dictatorial model of governing in our country.

HISTORY AND SOCIOLOGY OF LAW

THE SOCIAL HISTORY OF LAW AS A FACTOR OF THE RULE OF LAW

Dmitriy Poldnikov, Yuriy Fogelson

The rule of law, understood as ideology and legal rules, is believed to be a competitive advantage of Western civilization, supporting its sustainable development. Yet it can also be viewed as a social norm of citizens who respect the law and follow its commands. How does this social norm emerge in different societies? This question must be answered through the social history of the law in Western and non-Western societies from a comparative perspective. This paper outlines the main features of comparative socio-legal history and tests it on some significant historical examples. In the first part of the article, the authors propose a functional classification of legal systems into three ideal Weberian types—the law of judges, learned law, and the law of the authorities. It allows us to consider the origin of the social norm of the rule of law. In the second part of the article, the authors trace the transition from the ideal types to natural legal systems and identify the factors that determine the stability of the social norm of the rule of law where it originated. In the final part of the article, the authors conclude that, first, the social norm of the rule of law emerged in the societies where the law had been treated either as a means of resolving disputes (the law of judges) or as the rules of fair, correct conduct (learned law), for example, the Roman Republic, medieval England, continental Europe, and the Ottoman Empire.

HUMAN RIGHTS AND FREEDOMS

THE CONSTITUTIONAL HUMAN RIGHTS IN UZBEKISTAN: POSITIVISM, TRADITIONALISM, AND A CAUTIOUS SHIFT TOWARDS INTERNATIONAL LEGAL STANDARDS

Aziz Ismatov

Until recently, unofficial interpretations of the situation with human rights had remained as an unspoken taboo in Uzbekistan, whereas foreign observers harshly criticized the country, pointing out systematic violations and restrictions of rights by the state. Indeed, not many could predict that the new President Shavkat Mirziyoev, who was elected in 2016, would initiate steps towards improving the human rights situation and, simultaneously, face specific challenges. The 1992 Constitution was developed within the complex transition process from socialism to market economy. This Constitution devotes an entire chapter to human and citizens’ rights. Initially, some authors expected that the Constitution would integrate rights in the context of natural-legal ideas. However, Uzbekistan has largely preserved and strengthened the positivist approach towards constitutional rights, designating the state to grant and limit those rights. The paradox of this situation is that Uzbekistan’s tendencies conflict with the general trends of the post-socialist constitutionalism since the country practically did not change constitutional provisions’ evolutionary development. On the other hand, in the post-socialist Eastern European countries and some former USSR republics, the collapse of socialism led to a constitutional revolution.

JUDICIAL ARGUMENTATION

JANUS TURNS OUT TO BE ONE-FACED: THE JUDGMENT OF THE RUSSIAN CONSTITUTIONAL COURT ON THE PERMISSIBILITY OF EXAMINATION OF JURORS IN THE LIGHT OF FOREIGN LAW

Aldar Chirninov

According to Article 56 of the Russian Code of Criminal Procedure, “a judge and a juror may not be examined as a witness about the circumstances of a criminal case which they have become aware of while participating in it”. The Russian Supreme Court has interpreted this rule as imposing a categorical prohibition to examine a juror even though the defense submits and tries to prove that jurors were not impartial due to the extraneous influence and unlawful threats that they confronted in a jury room. As a result, this approach, instead of ensuring the confidentiality of jury deliberations, has been rather used to preclude the discovery of procedural irregularities in reaching a verdict. In its judgment of 7 July 2020, the Russian Constitutional Court has softened this unreasonable restriction by ruling that jurors’ witness immunity is not absolute and appellate courts must use their testimony to establish facts relating to alleged attempts to place unlawful pressure on a jury by undermining the secrecy of jury deliberations. Based on a case file, including the petition that the author of this article drafted and filed to the Russian Constitutional Court, the article reconstructs the arguments invoked by the parties in the course of constitutional proceedings and assesses the approach taken by the Russian Constitutional Court to decide the case.

BUILDING POLITICAL PARTIES

LEGAL RESTRICTIONS ON THE RIGHT OF ASSOCIATION IN POLITICAL PARTIES AND THEIR INTERPRETATION IN COURT DECISIONS: COMPARATIVE LEGAL ANALYSIS

Andrey Vershinin

The article examines the issue of exercising the freedom of association in political parties in Russia in a comparative analysis with the leading democratic countries of the world. Modern democracies cannot be imagined without political parties, which are the representors of the interests of their voters in legislative bodies and local government bodies. The development of civil society and the entire political system in the country depends on how the freedom of association in political parties and the access of parties to participate in elections is realized. The development of legislation on political parties in the Russian Federation proceeded unevenly. In the first years after the adoption of the Constitution the legislative body did not introduce strict requirements for parties. The adoption of a special federal law on political parties in 2001 became a turning point in the development of the party system. The author identifies two large blocks of restrictions on the creation of parties. The first is legislative restrictions, the second is the restrictions that arise from the unfair activities of legislative and law enforcement agencies. In this work, legislative restrictions are compared with restrictions in other democracies, as well as based on legal positions developed by the European Court of Human Rights.

POINT OF VIEW

CONSTITUTIONALIZATION OF THE PRINCIPLE OF RESPECT FOR ELDERS: THE EXPERIENCE OF THE 2020 CONSTITUTIONAL AMENDMENTS, THEIR CONTENT AND IMPLEMENTATION PROBLEMS

Pavel Astafichev

The article is devoted to the study of a number of problems related to the regulation and implementation of the principle of respect for elders, which is new for the constitutional law of Russia. The author substantiates the position that the problem of constitutionalization of the principle of respect for elders should be posed wider, at least outside the boundaries of strictly educational activities and in the broader context of the paradigm of the hierarchy of seniority in the system of fundamental principles of constitutionalism. The principle of “respect for elders” is opposed by the stable constitutional practice of Russia and foreign countries guaranteeing at the constitutional level, on the one hand, the rights of parents (mothers, fathers) and the elderly, and on the other, children and youth.

IN THE RUSSIAN CONSTITUTIONAL COURT

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT JUDGMENTS NOS. 4‑P – 9-P • 2021

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT RULINGS NOS. 180-O-R, 182-O, 183-O, 186-O, 378-O • 2021