«International Justice»
Issue №4 (8)

RES JUDICATA

Janowiec and Others v. Russia: Katyn Tragedy in the Procrustean Bed of Judicial Decisions
Maxim Timofeyev

The author analyses the recent judgment delivered by the Grand Chamber of the European Court of Human Rights in case of Janowiec and Others v. Russia that concerned positive obligations to conduct an effective investigation in relation to events that occurred not only before ratification of the Convention by Russia but prior to the adoption of the Convention. He notes that this judgment demonstrates in particular that not all the past events and related national and personal tragedies fit into a Procrustean bed of judicial decisions.

“Pride and Prejudice”: Proportionality of Blanket Constitutional Ban on the Right to Vote for Detained Persons in Russia. Judgment of the European Court of Human Rights of 4 July 2013
Alexey Dolzhikov

The present paper is concentrated on the issue of proportionality of blanket constitutional ban on the right to vote for detained persons in Russia. It was inspired by the Judgment of the European Court of Human Rights of 4 July 2013 in the case of Anchugov and Gladkov v. Russia. This Judgment had arisen some fundamental legal issues before Russian domestic law. Among them are the role of international justice in creation of the uniform standards of human rights, limits to the state sovereignty, collision of the Constitution of the Russian Federation with international treaties, and, particularly, the problem of prisoners’ disfranchisement. The main part of the paper is devoted to the assessment of the application of proportionality principle in this case. The paper argues on the possible settling of the conflicts between provisions of international treaties and Russian basic law through “consistent constitutional interpretation” by the Constitutional Court of the Russian Federation. Due to the recent judgment of the Constitutional Court of the Russian Federation on the topic of prisoners’ disfranchisement special attention will be paid to the constitutional case-law in the related legal issues.

Taxation and Human Rights: the European Court of Human Rights’ approach
Nataliya Vorobyeva

The State’s right to imposition and collection of taxes is analysed within human rights framework in this article, particularly, through the right to peaceful enjoyment of possessions. The author scrutinizes the European Court of Human Rights’ approach to the examination of tax disputes within the guarantees of Article 1 of Protocol No. 1 to the ECHR, relying on the last two decades case-law. The conducted research leads to the finding about ECHRt’s case-law trends and its role in the tax policy of states.

Delfi AS v. Estonia: Liability of a News Portal for User-generated Content. Judgment of the European Court of Human Rights of 10 October 2013
Maria Suchkova

In a case involving a conflict between the freedom of expression as guaranteed by Article 10 and right to the protection of reputation as guaranteed by Article 8, the liability of an Internet news portal owner for the damage done as a result of publication of defamatory comments by anonymous users does not violate Article 10 of the Convention despite the portal’s efforts to immediately delete the said comments upon receiving a notice from the aggrieved party.

justicia

Procedural Law of the International Court of Justice: Сounter-claims (General Part)
Sergey Punzhin

The procedure for the presentation of counter-claims is set out in Art. 80 of the Rules of the International Court of Justice. The Court’s modern case law relating to counter-claims began to take shape with the 1997 Order in the Application of the Genocide Convention (Bosnia and Herzegovina v. Yugoslavia) case. According to the definition given by the Court, a counter-claim is a legal act made by the respondent State the object of which is to submit a claim that “counters” the principal claim of the applicant State. In all cases in which counter-claims have been presented, the respondent State has separated its defence on the merits and its counter-claims. The question of admissibility of counter claims is decided as a matter of priority on the basis of the parties’ written observations. Third States having access to the Court are informed of those counter-claims which are found to be admissible.

JUS Hominum

Disappearance Cases before the European Court of Human Rights and the Human Rights Committee: Convergences and Divergences
Helen Keller, Olga Chernishova

The article is written by a Judge of the European Court of Human Rights elected in respect of Switzerland, former member of the UN Committee on Human Rights, Helen Keller, and a lawyer of the ECtHR Registry Olga Chernishova. Drawing on their professional experience, the authors examine the approaches by these two international bodies’ to applications concerning enforced disappearances. Identifying parallels and divergences between the European Court’s and HRC’s work, the authors analyse the types of such complaints lodged with the two institutions, compare fact-finding tools, admissibility criteria, the choice of substantive rights under the European Convention on Human Rights and the International Covenant on Civil and Political Rights to enforced disappearances, problems of the execution of international bodies’ decisions in this sphere.

Legal Status of Acts of UN Human Rights Treaty Bodies in National Legal Systems
Aleksandr Solntsew, Aleksandra Koneva

The article examines the acts adopted by international organs responsible for verifying compliance by States with human rights obligations established by core international human rights treaties, and the legal status of these acts in national law. To this end, the article analyses national legislation and the practice of national courts in the application of the treaty bodies’ acts. Consideration of the legal status of the treaty bodies’ acts in national legal systems is of particular importance in light of the proposals to strengthen the human rights treaty body system.

Jus Commune

Relationship Between Constitutional and Supranational Law: Ways to Resolve the Conflict (Example of European Union and National Legal Systems in EU Member States)
Maria Filatova

The article focuses on approaches to the relationships of national constitutional and supranational legal norms in the EU law and the law of member States. The way to avoid conflicts between legal orders of different levels lies in the ability of the EU bodies to respect “constitutional identity” of States, which comprises norms on fundamental rights and the bases of constitutional order. National constitutional courts, in their turn, recognize their right to exercize constitutional control of the aspects of European integration touching on this constitutional identity (the doctrine of counter-limits).

LEX MERCATORIA

International Arbitration Tribunals Litigating Disputes between Investors and Host States, Arbitrability of such Disputes and Territorial Limits of Jurisdiction Dealing with Mentioned Disputes under the Energy Charter Treaty
Alexey Avtonomov, Igor Zenkin

In the present article, after considering general issues of dispute resolution in accordance with the Energy Charter Treaty and, in particular, disputes between an investor and a host State, such issues as the territorial application of this Treaty that determines how the list of subjects of possible participants to investors’ disputes (at the place of registration of the legal entities) with the States and the territory on which the dispute may arise (at the place of investment), and arbitrability of disputes between investors and host States under the Energy Charter Treaty are discussed rather in detail. The article explores the normative material (the Energy Charter Treaty provisions and legislative acts) and the existing practice of consideration of disputes between investors and host States.

JUS CRIMINALE

The Decision of the ICTY in the Case Gotovina/Markač as a Reflection of Some Tendencies in Development of the International Criminal Justice
Andrey Antonov

The article presents an analysis of the last-year decision of the ICTY Appeals Chamber in the case Gotovina/Markač. Besides considering the errors of this decision, the author presents his opinion in relation to the way this decision influences the field of international criminal law. The author also briefly characterizes a number of recent public scandals in the ICTY. Against this background, the author presents his opinion on the current state and the tendencies of development of the international justice system. (Part one).

CONVENTUS ACADEMICI

Tunkin Readings Conference – 2013 (Moscow, October 17th 2013, MSU)
Aleksandra Ivlieva
Moscow State University, Law Faculty, recently hosted the Tunkin Readings – an annual international law conference which was focused this year on “protection of environment and public health in the globalization era.” The article presents a short survey of a few most remarkable presentations as well as some ideas regarding the format of the event.

International Justice • Issue№4 (8)