«Comparative Constitutional Review»
Issue №5 (138) 2020

CONSTITUTIONAL WATCH

AUGUST — SEPTEMBER • 2020
Belarus, Egypt, Iran, Italy, Liechtenstein, Malta, Moldova, Montenegro, Russia, Ukraine

POINT OF VIEW

TURNOVER OF LEADERS OF AUTHORITARIAN REGIMES: CONDITIONS, OPTIONS
Ilya Shablinsky

The article is devoted to the possibility of changing power within regimes that are considered authoritarian (or hybrid). The practice of some such regimes shows that they still allow for a real and sometimes even regular change of power, without changing their character and, in fact, without allowing the real functioning of democratic institutions. Special attention is paid to the States formed in the space of the former USSR. It is noted that the post-Soviet authoritarian regimes can be separated into a separate subspecies. The article discusses the following options for transferring power under an authoritarian regime.

CONSTITUTIONS GUIDE

NEW ZEALAND CONSTITUTION: A FUSION OF LEGISLATIVE ACTS, CASE LAW (STARE DECISIS), CUSTOMS (CONVENTIONS) AND TREATIES
Alexei Avtonomov

The article examines the genesis of the Constitution of New Zealand, the formation of its constituent parts and the main sources of constitutional law; it generally profiles the Constitution. The article shows the mutual influence and interweaving of the components of the unconsolidated Constitution of New Zealand in contemporary conditions. In particular, the constitutional provisions presented in the Treaty of Waitangi are examined, and attention is focused on the contemporary problems of its current interpretation and application, although the historical context of its drafting and conclusion is shown. The article deals with the interpretation of some basic constitutional terms when using different official languages of New Zealand, first of all Maori and English tongues. 

LAW AND PHILOSOPHY

PROACTIVE LAW AND REACTIVE LAW: TRANSFORMATION OF LEGAL SYSTEMS IN THE FACE OF GREAT CHALLENGES
Vladimir Przhilenskiy

The paper substantiates the thesis that the distinction between proactive and the reactive rulemaking [lawmaking] becomes much more distinct and significant in crisis periods of societal development. In such periods, when social systems face huge challenges, the corresponding transformation of legal systems either follows the logic of preserving existing institutions and values (reactive law), — alternatively — goal-setting is based on lawmaking aimed at transforming the social reality (proactive law). Both proactive and reactive lawmaking can come into conflict with the existing constitution, moving society to change it by bringing it into compliance with changed goals and values or changed social realities. 

LAW AND RELIGION

THE PRINCIPLE OF SECULARISM OF THE STATE IN THE DECISIONS OF THE CONSTITUTIONAL COURT OF ITALY: ALL ROADS LEAD TO ROME
Igor 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.

LOCAL GOVERNMENT

LOCAL COMMUNITIES AS A TOOL FOR THE DEVELOPMENT OF MUNICIPAL DEMOCRACY: GERMAN EXPERIENCE AND LESSONS FOR RUSSIA
Alexander Larichev, Emil Markwart

Local government as a political, legal and social institution finds itself in a very difficult period of development in Russia. The long-established tendency of its subordination to the state has intensified today in connection with the newly adopted constitutional amendments. At the same time, it seems obvious that further “embedding” of local government into the state management vertical, in the absence of any positive effect in terms of solving socio-economic and infrastructural problems, will inevitably lead to other hard to reverse, negative results both for local government institutions and the system of public authority as a whole. The normal functioning of local government requires, however, not only the presence of its sufficient institutional and functional autonomy from the state, but also an adequate territorial and social base for its implementation. 

DEFENSE OF LOCAL AUTONOMY IN THE CONSTITUTIONAL COURT OF SPAIN
Evgeny Komlev

The article examines the procedure for considering complaints about violation of local autonomy in the Constitutional Court of Spain. The study is based on the analysis of legal regulation of such a category of cases as conflicts in defense of local autonomy and the relevant practice of the Constitutional Court of Spain. The aim of the study is to identify the features of Spanish procedure for protecting the local autonomy by means of constitutional justice, to determine the main advantages and disadvantages of the legal regulation of this procedure. As a result of the analysis, the author comes to the conclusion that the mechanism for defense of the local autonomy in the Constitutional Court of Spain is not free from significant drawbacks. 

LEGAL REASONING

BETWEEN THE HAMMER AND THE ANVIL: THE RUSSIAN CONSTITUTIONAL COURT’S POSITION ON THE ABOLITION OF THE DEATH PENALTY
Olga Komshukova

The key factor in maintaining a moratorium on the death penalty in Russia is its membership in the Council of Europe, which requires compliance with the European Convention for the Protection of Human Rights and Fundamental Freedoms and the abolition of the death penalty. One of the proponents of maintaining Russia’s adherence to the Convention is the Russian Constitutional Court. However, the return of the death penalty as a capital punishment finds some support in Russia. Therefore, the Constitutional Court has to maintain a balance between two forces: internal pressure from public opinion and a number of conservative government representatives, and fidelity to the fundamental principles of the Russian Constitution and international law, backed up by international obligations undertaken by Russia. 

ECONOMIC CONSTITUTIONALISM

CONSTITUTIONAL BASIS FOR PUBLIC PROPERTY IN THE CONTEXT OF THE CREATION OF A LEGAL ENTITY OF PUBLIC LAW
Vladimir Nizov

The article discusses problems of the constitutional regulation of property rights and property itself. The research has been narrowed down to the features of public property regulation in the Russian Federation. The relevance of the research is explained by the process of the reform in the public property administration in Russian Federation, which has transferring of the state property to some legal entities of public law as distinguished feature. The author proposes the historical analysis of the property regulation’s development and the role of the Constitution in this process. The comparative instruments are used to show the main preconditions and trends of public property regulation in Russia and other countries. 

IN THE RUSSIAN CONSTITUTIONAL COURT

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT JUDGMENTS NOS. 27-P – 37-P • 2020

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT RULINGS NOS. 1638-O, 1640-O-Р, 1642-O, 1643-O, 1644-O, 1641-O • 2020

Comparative Constitutional Review • Issue№5 (138) 2020