«International Justice»
Issue №1 (37) 2021

EX OFFICIO

EUROPEAN COURT OF HUMAN RIGHTS: REVIEW OF THE GRAND CHAMBER JUDGMENT OF 15 OCTOBER 2020 IN THE CASE OF MUHAMMAD AND MUHAMMAD V. ROMANIA (АPPLICATION NO. 80982/12)

In Muhammad and Muhammad v. Romania (application no.80982/12), the European Court of Human Rights examined the legality of limiting the right to be informed of the reasons for expulsion and the right to have access to the documents in the case file. The Grand Chamber acknowledged that these rights were not established in the first paragraph of Article 1 of Protocol no.7 to the Convention, but noted that a foreigner would not be able to present arguments against his expulsion if he did not know the factual circumstances based on which the authorities concluded that he poses a threat to national security.

JUS HOMINUM

QUESTIONS WITHOUT ANSWERS, OR ТHE ABORTION СASE 
Tatiana Khramova, Alexandra Troitskaya

In October 2020, the Constitutional Tribunal of Poland delivered a landmark judgment where it held the legislative provision allowing the termination of pregnancy on the grounds of severe and irreversible impairment or incurable life-threatening disease of the fetus unconstitutional. This article presents a study of a fundamental legal conflict that is central to this judgment. It examines the decision of the Tribunal not only in the light of Polish legislation and jurisprudence, but also in a broader context of a biomedical discussion about the beginning of life, a formalistic definition of a legal personality, the idea of equal protection of life regardless of the state health, and the need to protect the rights of a woman that may at times come into conflict with the recognized rights of a fetus. In fact, the arguments that we find in the judgment of the body of constitutional review of a particular state trigger a discussion of the problematic issues relevant for any society. The article also includes an overview of the caselaw of the European Court of Human Rights that, on the one hand, highlights the range of problems that should be addressed by the national regulation of the grounds for abortion, and on the other hand, demonstrates the existing gaps in the fundamental bioethical and legal responses to these dilemmas.

RIGHT TO A NAME: CROSS-BORDER FAMILY-LEGAL ASPECTS OF IMPLEMENTATION
Elena Voytovich

The increase of cross-border contacts of individuals has shifted the emphasis in modern studies of the right to a name in Civil and Family law to Human rights and Private International Law. The article examines the problems of cross-border implementation of the right of an individual to a name, which are a consequence of state control over the circulation of names, as well as conflicts of national laws. The author offers to get acquainted with the practice of the European Court of Human Rights and the Court of the European Union, which serves as an illustration of the peculiarities of the implementation of the right to a surname in the context of convergence of legal systems. 

JUSTICIA

BONA FIDE PROBLEM IN THE ACTIVITY OF INTERNATIONAL JUDGES 
Vladislav Tolstykh

The article examines the forms of bad faith of international judges, the possibilities of counteracting manifestations of bad faith and the factors that stimulate bad faith. Among the first, there are forms related to the appointment of arbitrators (moonlighting, revolving door, issue conflict, etc.), and forms related to the process itself (ex parte communication, pressure on other judges, involving an assistant to perform the work of a judge, etc.). The article provides specific examples of bad faith and analyzes the positions of the courts and doctrine

FUNCTIONS OF COMPENSATION FOR HUMAN RIGHTS VIOLATION IN INTERNATIONAL AND NATIONAL JUDICIAL DECISIONS
Dmitry Kuznetsov

When establishing human rights violations committed by the state, should it be violation of internationally protected rights or constitutional rights, the violator is obliged to compensate for the harm caused. In the meantime, neither international sources, nor national legal acts and case law answer the question whether the obligation to compensate is exhausted by the compensation awarded in accordance with a decision of an international judicial body or such a payment has punitive nature, and the state keeps the obligation to compensate the damage within the frameworks of national proceedings. Following the first part of opening remarks the second part of the article studies universal international law approach towards the state obligation to compensate for human rights violations, it reviews positions of the International Court of Justice, the model established in international customary law of international responsibility. The third part discusses the compensation mechanism of the European Court of Human Rights and a number of cases where the Russian Federation was the respondent state. The forth part considers national regulation of the Council of Europe states and case law thereof.

JUS COMMUNE

THE ROLE OF INTERNATIONAL AGREEMENTS AND INTERNATIONAL CUSTOMARY LAW IN THE EU AND EAEU LEGAL ORDERS
Kirill Entin

The article examines the provisions of EU and EAEU law regarding the role and place of international agreements and international customary law in their respective legal orders. The duty of regional integration organisations to comply with international law necessitates the creation of mechanisms allowing incorporating international law norms into the EU and EAEU legal systems while ensuring the independent (autonomous) character of these legal orders. The case law of supranational courts plays a prominent role in resolving this issue. The author focuses primarily on issues that are relevant not only for the EU but for the EAEU at the current stage of its development: ensuring that international agreements with third parties are compatible with the main rules and principles of the functioning of the integration organization; the possibility for individuals to challenge the validity of EU/EAEU institutions/bodies acts on the ground that they are contrary to international treaty or customary law as well as to the binding nature for a regional integration organisation of international agreements concluded by Member States in fields where the competence has been transferred to the supranational level.

JUS GENTIUM

THE LAW ENABLING SANCTIONED PERSONS TO MOVE LITIGATIONS TO RUSSIA:
BACKGROUND AND REASON
Sergey Glandin

On 8th June 2020 Vladimir Putin signed into law a new bill amending Russian Commercial Code (RCC) introducing provisions that enable sanctioned persons to sue in Russian commercial courts their foreign counterparts irrespective of jurisdiction clause within the contract signed or international treaty. The main sponsor has given his name to the new Law, which is already known as Lugovoy Law. The sense of the Parliament was that to provide Russian sanctioned persons and their affiliates (both domestic and foreign) with extra support vis-à-vis ongoing and forthcoming litigations abroad. As of now, the RCC is supplemented by sections 248.1 and 248.2 and the commercial courts shall have exclusive jurisdiction over disputes involving persons that are subject to restrictive measures. The Law neither list countries and jurisdictions that shall impose sanctions on the Russian plaintiffs, nor specify type of restrictive measures.

LIBRORUM

APOLOGY OF FREEDOM 
BOOK REVIEW NUSSBERGER A. THE EUROPEAN COURT OF HUMAN RIGHTS. ОXFORD : OXFORD UNIVERSITY PRESS, 2020
Maria Filatova

The subject of this review is the book written by a famous German legal scholar, Angelika Nussberger, whose name is well known to the Russian legal academic community. Professor Nussberger was a judge in respect of Germany at the European Court of Human Rights from 2011 to 2019, and Vice-President of the Court in 2017–2019. The book, published in Oxford University Press, is a part of their series “Elements of International Law”, which explains its structure and comprehensive approach to the subject. The book embraces all important relevant topics of the Court’s activities, from its conception and the beginning of its activities as an optional jurisdiction up to its transformation to the most authoritative international court in the area of human rights protection. Special attention is paid to the Court’s role in the creation of human rights culture in Europe and worldwide. Other topics covered by the book include its organization and procedure before the Court; the evolution of the Court’s methodology; interaction with other «actors» on human rights law field (national and other international courts); enforcement of the Court’s judgments and its efficiency; the Court’s future: main challenges and perspectives.

SCHOLAE

CONTENT OF THE MARTENS’ CLAUSE 
Daniil Sechin

The article is devoted to internal content of the Martens clause, which is an important social relations regulator. The practical relevance of this research is justified by existing armed conflicts, as well as by the fact that it fills the legal vacuum arising in situations that are unresolved with international treaties and customs. Moreover, the Martens clause is one of the links between international humanitarian law and international human rights law, which provides the necessary level of legal protection for all parties in armed conflicts. Accordingly, the regulatory role of the Martens clause is increasing which can be found in judicial practice. However, there was no examination of the relationship between morality and the Martens’ clause content. The main aim of this study is to identify the moral meaning and content of the principle of humanity and public consciousness, because the potential discrepancy of this provision may cause risks in the protection of rights of armed conflicts participants.

International Justice • Issue№1 (37) 2021