«Comparative Constitutional Review»
Issue №2(117)

he evaluation of contemporary Russian federalism makes it clear that it stay too fare from being the sustainable phenomenon comparable to the full-fledged democratic models in terms of symmetry, structure, and functional efficiency. One of the main causes of that inconsistency presumably could be found in the permanent reproduction of birth marks of Soviet constructions which are still alive in the current constitutional regulation, legal politics and the practical implementation of federalist institutes. The main questions of this investigation are the following: which are the most typical traces of Russian federal system in comparative and a long-term perspective of Soviet and Post-Soviet regulation; how this system was created in the period of revolutionary turmoil and developed in the course of social and constitutional transformation under Communist dictatorship; which were targets of the founding-fathers and how their intentions transformed in the process of one-party regime consolidation, and finally, why this system survived after the collapse of Soviet Union in its important features. In order to find answers, the author analyses archival materials of all Russian Constitutional commissions and products of their work (Russian Constitutions of 1918, 1925, 1937, 1978 and 1993). 

Dialogue on equality

SUBSTANTIVE EQUALITY REVISITED. A REPLY TO SANDRA FREDMAN
Catharine A. MacKinnon

Judicial constitutionalism

JUDICIAL DISCRETION IN CONSTITUTIONAL ADJUDICATION
Daniel Smilov 

This paper addresses the theoretical advantages and disadvantages of the concept of judicial discretion. This is a controversial concept, not recognised as legitimate by all theories of law and adjudication. The article explores the reasons for its adoption or rejection, and provides an instrument for distinguishing between theories which endorse the concept, and theories which dismiss it as irrelevant. The author argues that the borderline between these two groups can be illuminated by the distinction between what he calls coherentist accounts of law on the one hand, and holistic and atomistic approaches to law, on the other. While the former claim to be able to dispense with judicial discretion, the latter admit that it is inevitable in the process of adjudication.

Electoral process: measurement problems

ON SOME ISSUES OF ELECTORAL BARRIERS IN A PARTY LISTS BALLOT SYSTEM
Konstantin Sibarov

The article addresses the party lists election system with the electoral threshold, which for a long time has being used in many countries, and the recent experience and workability of this electoral instrument in the Russian State Duma elections. Using imitated numerical examples the author shows limited efficiency and gaps following from the extreme simplicity of the wording of the electoral law. In this paper, the author makes an attempt to fill a gap in this theoretical issue of legal regulation, which could be employed in practice of electoral politics. The author comes to the conclusion about the absence in the contemporary world of a strict and sound approach to establishing the proper dimensions of the electoral threshold. In order to judge the usefulness of the percentage barrier as a limiting tool of ensuring the homogeneity of the representative and legislative body, it needs to be able to calculate its heterogeneity.

The article addresses the issue of role and share of small political contributions in total revenues of political parties of Russia. As a comparative parallel, the author presents a broad survey of the experience in fundraising by the American political parties as one of main fields of their life supporting activities and considers factors which contributed to the development of this source of party financing in the United States. In particular, the article examines financing of the US political parties through small political contributions. While discussing the features of the American model of political parties funding and its differences from existing Russian model of party fundraising, the author courts the idea of possibility of using American party fundraising experience in the Russian context and suggests certain ways of adopting some practices of the US parties in supporting their money boxes. 

In the present article the author analyzes the jurisprudence of the United Kingdom and the United States of America in order to identify the approaches to the “euthanasia” definition and the criteria underlying the decision of the admissibility or, opposite, of the inadmissibility of euthanasia in different cases. In contrast to the countries which expand the list of subjects who can apply the euthanasia procedure and the countries which support the total ban on euthanasia, the jurisprudence of the UK and the USA shows the third – more flexible – way to deal with controversial issues which inevitable arise in practice of euthanasia administration.

Nuclear energy is an integral part of the energy industry in almost all developed countries and one of the most perspective directions of energy production. Still, there is a tendency of limiting the use of nuclear power plants. Environmental hazards of reprocessing of spent radioactive fuel has led to abandoning the recycling these materials by many countries. Only four countries do reprocessing of spent nuclear fuel today. Russia allows the import of spent nuclear materials for reprocessing to its territory from other states. There are many problems related to the import of radioactive waste into the Russian territory. One of them is the violation of the constitutional right of citizens to a healthy environment protected by the Constitution, laws and regulations. However, certain provisions of Russian laws do not allow the Russian social institutions to control the volume of imported waste and monitor negative backwash of their processing and disposal within Russian territory. 

In December 2016 the Venice Commission of the Council of Europe adopted an opinion on the emergency regime in Turkey, declared by Turkish Parliament in July 2016. The opinion examines to what extent extraordinary powers of the Government are limited by the Constitution and constitutional laws. The Commission condemned the coup, but made several critical observations about the manner in which the Government used their extraordinary powers received from Parliament following the declaration of the state of emergency. Most importantly, the Commission insisted that the Government should use extraordinary powers only for addressing those issues which are connected to the emergency. There is a risk of permanentisation of legal mechanisms and tools which have been introduced during the state of emergency. Structural legislative reforms should be implemented through a normal democratic procedure. It is equally important to ensure effective – and that means timely – control of the Government’s actions by Parliament and the Constitutional Court. 

In the Russian Constitutional Court

REVIEW OF LEGAL REASONING IN THE RUSSIAN CONSTITUTIONAL COURT JUDGMENTS
Nos.9-P–16-P 2018

REVIEW OF LEGAL REASONING IN THE RUSSIAN CONSTITUTIONAL COURT RULINGS
Nos.575-О, 578-О, 579-О, 580-О, 586-О-Р, 592-О, 593-О, 841-О, 865-О, 866-О 2018

Comparative Constitutional Review • Issue№2(117)