CCR № 5 (144) 2021

Available only in Russian

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CONTENTS

CONSTITUTIONAL WATCH

AUGUST – SEPTEMBER • 2021

FEATURE: EU INTEGRATION PROJECT

THE FUTURE OF EUROPE: A POLITICAL DISCUSSION OF PROSPECTS OF THE EUROPEAN UNION INTEGRATION PROJECT

Andrey Medushevsky

The European integration project as designed by its founders seventy years ago is experiencing difficulties in the current conditions of globalization, confronting challenges which were unpredictable beforehand. Many of these are of crucial character for the European Union, putting in question its constitutional organization, institutional structure, and political sustainability in the international balance of power. The list of most important issues includes ones like the yet incomplete character of the Union’s legal construction, which is balanced between supranational and national forms of regulation; the erosion of legitimacy of European institutions; the growing democracy deficits in transnational and national governance; the decline of solidarity in inter-governmental relations; and the falling level of accountability and decision-making mechanisms in Europe. The very natural response to these problems was a Pan-European discussion, stimulated by European elites after Brexit, on the future of the European project in order to frame existing opinions, provide a fresh start to “the European dream”, and possibly find appropriate solutions to legitimacy problems. An analysis of this ongoing discussion is the main subject of this article. This analysis involves such key issues as the future role of the EU founding agreements, as to keeping them or amending them in order to reconstruct the European constitutional settlement. It demonstrates the complex nature of the basic communitarian concept, in view of its various interpretations by different ideological trends such as cosmopolitism and confederation and federation movements. It explores the current agenda of institutional reforms involving parliamentarian and presidential strategies and reviews proposed solutions of the European leadership problem. The conclusion of the article makes it clear that the European Union is confronted today with the most dramatic challenge in its entire history. It consists in the necessity of making a decisive choice between two polar options – to preserve an amorphous conglomerate of states or to establish a new federal state. This must be done in a rather short period in order to avoid falling apart and to become a full-fledged and independent global political player.

THEORY OF CONSTITUTION

CONSTITUTION-TRANSFORMING INFORMAL METHODS OF CHANGING THE CONSTITUTION OF THE RUSSIAN FEDERATION: BETWEEN VALIDITY AND CONSTITUTIONALITY

Dmitry Shustrov

The Constitution of the Russian Federation has been changed according to formalities and the rules established by it, although there are numerous examples of constitutional changes having been made outside of formal procedures. In the theory and practice of constitutional law, an approach has been developed according to which the constitution can be changed without formally changing its text — by changing its meaning. Such changes are called constitutional transformation and are carried out by informal methods of changing the constitution. They differ significantly from the formal methods of constitutional reform, since they are carried out not by the sovereign source of power but by the constituted power – by the legislative, executive, and judicial authorities. The article examines the main informal methods of changing the constitution: law, interpretation, convention. Constitutional transformation by informal methods of constitutional change is not provided for by the constitution, therefore it is unconstitutional. However, it becomes valid thanks to implementation by institutions established by the constitution, within the framework of constitutionally provided procedures and recognized as methods of constitutional change by other subjects of constitutional relations. If the subjects of constitutional relations are not in agreement with a constitutional transformation, they can overcome it through constitutional reform or (depending on the method) through an appeal to the constitutional court by which, if successful, an informal constitutional change becomes unconstitutional and invalid. Turning to informal methods, the government incurs costs in terms of the legality and legitimacy of the constitutional change, but at the same time it gains in terms of efficiency, time saving and the result obtained. The emergence of a “living”, “parallel” constitution, the lag of the formal constitution behind real life, the inadequacy of the constitutional text are the price paid for resorting to informal methods of constitutional change. It is important that resort to informal means does not become the norm. Constitutional transformation should be supplementary in nature, and appeal to it should be the last resort.

DIRECT EFFECT OF THE CONSTITUTION: SPECIFIC FEATURES OF THE RUSSIAN MODEL FROM A COMPARATIVE PERSPECTIVE

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.

STANDARDS OF JUSTICE

THE CONCEPT OF HUMAN DIGNITY IN THE CASE-LAW OF THE SUPREME COURT OF CANADA ON CHARTER EQUALITY RIGHTS

Tatiana Vasilieva

This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.

CONSTITUTIONAL GUIDE

FORMS OF GOVERNMENT AND PARTY SYSTEMS IN LATVIA, LITHUANIA AND ESTONIA: 30 YEARS OF INDEPENDENCE

Ilya Shablinsky

This article focuses on the peculiarities of government forms in Baltic states that were once part of the USSR: Latvia, Lithuania and Estonia. The constitutional and legal bases of relations between presidents and their parliaments and governments are considered in detail, and the author makes a comparative analysis of institutions operating in these states. This article also examines the grounds for the resignation of governments, their heads, and individual ministers, as well as discussing the features of the party and electoral systems of these Baltic States. These systems’ functions face several problems, and forms of government like semi-presidential and parliamentary republics are shown to lack effectiveness across the Baltic States. It is important to note the instability of these governments, which changed every two and a half years on average, although this did not affect the countries’ economies. The presidents of these republics performed political mediation effectively and ensured a constant dialogue with political forces. Since national governments were formed on a non-coalition basis in all three States, an extensive practice of inter-party agreements and alliances began. This created a new type of political culture, where prejudice towards the Russian communities of the states in Latvia and Estonia was prevalent, and this issue is addressed in the article.

BOOK REVIEW

THE FATE OF A SCHOLAR AT THE CORE OF CONSTITUTIONALISM

BOOK REVIEW
CONSTITUTIONALISM UNDER STRESS: ESSAYS IN HONOUR OF WOJCIECH SADURSKI / ED. BY U. BELAVUSAU, A. GLISZCZYŃSKA-GRABIAS. OXFORD : OXFORD UNIVERSITY PRESS, 2020

Aleksandr Evseev, Elena Egorova

The article is a detailed review of a collective monograph published in honor of W.Sadurski, a prominent Australian legal scholar of Polish origin. It illuminates the most important problems of concern today to the international legal community. In particular, it is about the coming to power in a number of EU countries of right-wing populists who demonstratively disregard liberal values and tolerant rhetoric; the problems of the EU’s existence within its current borders, aggravated after the UK’s secession from the Union; and the phenomenon of “illiberal democracy” as one of the most dangerous challenges facing the constitutional development of the countries of Central and Eastern Europe, especially Hungary and Poland. Special attention is paid to democratic backsliding, seen in the steady decline in rankings of post-socialist countries in various ratings of democratic accountability. The paper draws a conclusion about the general crisis that democratic statehood is experiencing on the European continent today and which is perhaps the most serious since the late 1930s. Also addressed is the broader use of various forms of direct democracy, beginning with nationwide and local referendums and ending with various types of plebiscites on confidence. A relatively new form of popular governance has been introduced by deliberative (consultative) democracy, for example in the case of Ireland’s Citizens’ Assembly, which is chosen by random selection and as vox populi gives parliamentary committees recommendations on the most acute and divisive social problems. The volume also illuminates rightist governments’ social-economic policies repudiating the 1990s’ widely accepted concept of the market’s invisible hand and relying on direct payments to the population (as in Poland’s “500+” program, Covid payments, and so on). The Polish case is separately examined, particularly in the context of the so-called “war” with the Constitutional tribunal.

IN THE RUSSIAN CONSTITUTIONAL COURT

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT JUDGMENTS NOS. 30‑P – 40-P • 2021

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT RULINGS NOS. 1376‑O, 2123‑O, 2124‑O, 2125‑O • 2021