«Comparative Constitutional Review»
Issue №3(124)

CONSTITUTIONAL WATCH

APRIL–MAY • 2018

Armenia, Azerbaijan, Burundi, Georgia, Hungary, Montenegro, Paraguay, Russia, South Africa, Ukraine, Venezuela

Landscapes of democracy

ON THE PROBLEMS OF GUARANTEEING THE RIGHTS OF THE MACEDONIAN NATIONAL MINORITY IN BULGARIA
Stojko Stojkov, Natalia Butusova

The discrimination of the Macedonian minority in Bulgaria is one of the most topical problem in constitutional law of this country. National and international guaranties of the minority’s rights within different public spheres are analyzed in the article. The authors consider the national guaranties of the rights of the Macedonians in Bulgaria to be real legal relations between the state (its bodies and official), on the one hand, and ethnic minority and its representatives, on the other hand. In fact, these legal relations shall create specific conditions, ways and methods of guarantying their rights. Being the main guarantor of ethnic minority’s rights, the state is recognized as creating conditions for activities of associations and individuals for realization of their rights, but accorfong to the authors, in practice it does not happen.

Protection of rigts and freedoms: an institutional aspect

PECULIARITIES OF THE APPEARANCE OF OMBUDSMEN IN THE IBERIAN COUNTRIES OF EUROPE
Olga Gavrilova

In the 1970s there was a change in the political regime in Spain and Portugal. The result was the adoption of constitutions designed to create the legal basis for democratization that were characterized by a broad perception of the foreign experience of constitutionalism. In particular, some institutions were included in the state mechanisms, which had won recognition in states that are committed to constitutional values, but were new to Spain and Portugal. One of them is the institution of the ombudsman. The development of an ombudsman was widely discussed in professional circles. Legislators held discussions on the necessity an ombudsman in the state’s legal system, its name, and some other important issues. However, the situation with human rights, the judicial system, and defects in other human rights institutions, such as violations by executive bodies and undermining public confidence to the institutions of public authority as a result of the dictatorial regimes in Spain and Portugal, were obvious enough. Hence the prevailing of the viewpoint on the expediency of the institution of the Ombudsman as an institution designed to control the administration from the perspective of respect for human rights. Herewith, in the course of building the Ombudsman concept, a special role was assigned to representatives of science and journalism. In the process of adopting the Constitutions and, subsequently, the laws on the ombudsman, the legislators demonstrated an understanding and unwillingness to transform the institution into a political tool of any political party.

Judicial constitutionalism

This article examines the use of non-traditional evidence by Russian and American constitutional review organs while deciding constitutional cases. With references to case law of the Russian Constitutional Court and the United States Supreme Court, the author demonstrates that unlike traditional forms of adjudication, judicial review of legislation requires the assessment of legislative process materials, judicial opinions that differently interpret the same legal norms, foreign law and court decisions, and statistical evidence. Using methods of comparative law, the author determines the legal importance of facts that judges and parties in constitutional litigation can extract from the above-mentioned non-traditional evidence. While the evidentiary value of the materials of the legislative process depends largely on the quality of factual justification given by lawmakers for its normative decisions, the legislative record is of great value even where it contains no reference to facts.

Rights and freedoms in a new reality

GENDER STEREOTYPES IN RUSSIAN CONSTITUTIONAL LAW: THE “SPECIAL TREATMENT” TRAP?
Olga Podoplelova

The prohibition of gender discrimination a fundamental principle of constitutional and international law. At the same time, the implementation of this principle in Russia currently faces numerous problems, some of which originate from the text of the Russian Constitution and are being supported in the caselaw of Russian Constitutional Court. This article aims to examine the impact of gender stereotypes on the implementation of the principles of equality and prohibition of gender discrimination in Russian constitutional law. The author summarizes certain features of the constitutional regulation of these principles in the Soviet and post-Soviet periods. The article presents the overview of the caselaw of the Russian Constitutional Court on various issues of gender discrimination. The author reviews several key features of this caselaw. In particular, the analysis reveals a serious imbalance in the number of cases brought by women and men to the Constitutional Court, as well as significant impact of the concept of “special treatment” on the outcome of such cases dictated by nothing else as gender stereotypes.

In 2015, the Supreme Court of the United States made a historical decision in Obergefell v. Hodges, which legalized same-sex marriage throughout the country. This decision is part of a series of many similar decisions made in recent years in different countries, primarily in Western Europe. In recent years, the attitude of society and public authorities regarding this issue has undergone significant changes in different countries of the world. It is interesting that sometimes it was the judiciary who had to be the first to speak on this issue, expressing the general tendencies that are taking place in society. However, there are still many countries that do not yet follow this trend. This includes Russia, which continues to reject any form of same-sex unions – a position that was reflected in the decision No.24-P of Russia’s Constitutional Court from September 23, 2014. Russia belongs to a group of countries in which no form of same-sex unions is provided for by law, and marriage is treated solely as an alliance between persons of different sexes. The author analyzes the evolution and current status of same-sex marriages in the United States and Russia, putting emphasis on the importance of judicial decisions for reflecting certain tendencies in state and society.

Post-soviet legal and political regime: vector of development

POST-SOVIET SUPER-PRESIDENTIALISM
William Partlett

This article will argue that the predominant form of constitutional design in the former Soviet republics is not semi-presidentialism. Instead, it is a fourth type of formal constitutional design: super-presidentialism. Super-presidentialism is analytically distinct from both presidential and semi-presidential systems for two reasons. First, super-presidential constitutions are not semi-presidential because they give the president final control over the formation and dismissal of the executive-branch government. In the post-Soviet region, presidents have the formal power to make the final decision on both the appointment and dismissal of the prime minister and other executive branch ministers, chair government meetings, and rescind official decisions made by executive branch officials. Second, these constitutions are not presidential because they give the president significant power to supervise and control the legislative branch. In the post-Soviet states, this authority – a result of the pseudo-monarchical, free-standing position of the president as “head of state” and “guarantor of the constitution” – includes the formal presidential power to dismiss the legislature and, frequently, appoint members of the upper house of legislature.

The current crisis of constitutionalism as an apparent challenge to liberal democracy makes it important to understand its social origins, implications, and forms of protection. The book under review presents a broad vision of the problem and a comparative analysis of theoretical, institutional, and functional deviations of authentic liberal constitutionalism, including its values, principles, and incentives. A fundamental work on the nature of contemporary constitutional crisis, its causes, and practical outcomes in the erosion of principles, norms, and institutes, the book could be interpreted as an original encyclopedia of constitutional deviations of any kind deeply rooted in the scarcity of enlightenment, institutional disproportions, and in the target-oriented intentions of some political regimes to deconstruct, put under question, or limit the achievements of the liberal democracy. From this point of view, it should be appreciated as a courageous, profound, and rather sustainable criticism of constitutional conformism which ignore the very existence of illiberal legal transformation, diminishes its importance, or even approves it as a form of constitutional realism. That is why the book should be recommended as instructive reading not only for European intellectuals, but for Russian intellectuals as well. In this context the book shows how contemporary political regimes reduced the essence of liberal principles, parliamentary democracy, separation of powers, independent justice, and individual rights while keeping unchangeable all formal aspects of constitutionalism or even using them for the establishment of illiberal democracy.

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№3(124)