«Comparative Constitutional Review»
Issue №5 (132) 2019

CONTENTS

CONSTITUTIONAL WATCH: AUGUST–SEPTEMBER • 2019

POINT OF VIEW

MODELS OF RUSSIAN PARLIAMENTARISM
Ilya Shablinsky

This article is based on a hypothesis that so far a unified tradition of parliamentarism perception has not been definitively formed in Russia, as well as a unified pattern of the interaction of the people’s representative body with the executive authorities. The splitting of the existing model into at least three different smaller models can be viewed as a result of the contemporary political history of Russia with the mostly unsuccessful attempts to carry out a constitutional reform. The author examines some of the key events of the last stage of this reform. The focus of the article is on the evolution of the form of government in Russian Federation from 1990.

LEGAL ARGUMENTATION

RHETORIC OF RESTRICTIONS: ARGUMENTS IN JUDICIAL DECISIONS ON FUNDAMENTAL RIGHTS
Anita Soboleva

The article contains rhetorical analysis of arguments employed in cases where restrictions on fundamental rights have been challenged. It starts with a short overview of how “restrictions” are construed by different legal scholars in Russia, and a working definition of restrictions for the purposes of the analysis is given: it is understood as any narrowing of the scope of fundamental rights or their denial. In the next section the nature of legal arguments as rhetoric arguments is shown. Further, different types of conclusions drawn from valid and invalid premises and used with dialectic, sophistic or eristic purposes in attempts to justify restrictions of constitutional rights to freedom of assembly, freedom of belief and right to liberty and security of person in the texts of judicial decisions are analyzed. It is argued, that the purpose of correct legal arguments is to look at the problem from different perspectives, to find a just solution and to achieve the consent and adherence of the audience.

LEGAL REASONING IN CONSTITUTIONAL JUSTICE: AT THE FOOT OF THE RHETORICAL APPROACH
Aleksandra Uroshleva

The author of this article finds it necessary to pay more attention to the reasoning in the judgments of the bodies of constitutional review, taking into account the significant role that such judgments play in modern democracies. Meanwhile, in domestic legal science and practice focus is often made on regarding methods of constitutional interpretation, but not constitutional reasoning per se. The author defines the aim and the functions of constitutional reasoning. Acceptance of reasoning by parties of a constitutional process and by society as a whole is postulated as the aim of the reasoning, but it differs from a consent. A court’s aspiration to convince the audience should not be limited to meeting public expectations. Courts should consider public interests, but at the same time, they should remain “defenders” of the constitutional order and human rights. The author formulates, given the aim, the argumentative-interpretative, legitimating, policy-making or disciplining and informative functions of constitutional reasoning. As an effective model of reasoning in the judgments of the bodies of constitutional review, the author suggests a rhetorical one, considering the need to achieve the stated aim of the reasoning and to perform the indicated functions.

THE MULTI-FACETED LEGAL CERTAINTY

RETROACTIVE CHANGE OF STATUTORY LIMITATIONS FOR PROSECUTION OF CRIMINAL OFFENCES: THE JUDGMENT OF THE RUSSIAN CONSTITUTIONAL COURT OF 19 JANUARY 2017 IN THE EUROPEAN CONTEXT
Nikolay Bobrinskiy

The article is freely available

The judgment of the Russian Constitutional Court (the RCC) on the executability of the ECtHR judgment on pecuniary damage in the case of Yukos v. Russia has not been popular among researchers, maybe because it was surrounded by a shady political context. However, its reasoning deserves special attention. This article aims at comparing the arguments of the Russian Constitutional Court in support of retroactive change of rules of statutory time-bar for prosecution of tax offences and the reasoning of the constitutional and supreme courts of the Member States of the Council of Europe in cases related to retroactive extension, reinstatement or abolition of the statutory limitations for criminal prosecution (of non-international crimes).

CORRUPTION IN FOCUS: THE LEGAL PERSPECTIVE

THE SPECIFICS OF THE EVOLUTION OF THE CONCEPT OF POLITICAL CORRUPTION IN WESTERN AND RUSSIAN POLITICAL AND LEGAL DISCOURSE
Stanislav Sheverdyaev, Alina Shenfeldt

The article is freely available

This article provides a brief overview of the evolution of the concept of political corruption in the Western and Russian political and legal discourse. These observations help to understand that political and legal sciences, both in Russia and abroad, are on the way of increasing convergence in the search for constructive systemic solutions. At the same time, the authors do not attempt to establish an exhaustive set of criteria for the inclusion of existing anti-corruption institutions in the sphere of the constitutional law, or to predetermine the limits of immersion of constitutional and legal science in anti-corruption material. The main objective of the article is to characterize some of the main reference points of the modern international and Russian debates on corruption as a complex social problem. 

THE BALANCE OF CONSTITUTIONAL VALUES IN STRATEGIES TO COMBAT ILLICIT ENRICHMENT (RUSSIAN CASE)
Aleksey Chumakov

At the beginning of this paper, a classification of the types of enrichment of public officials depending on the method of generating the income is presented. A proposition is made to introduce the term “unjust enrichment”, which clarifies the specifics of non-criminalized illicit enrichment. The strategies for countering illicit enrichment are presented: the unexplained wealth orders strategy, the strategy of illicit enrichment criminalization, the administrative and disciplinary control strategy, the strategy of social solidarity. The author also looks into the criminalization of illicit enrichment as the main anti-corruption tool and gives his opinion on the issue. The author explores the correlation between the principles of the inviolability of private and family life, the presumption of innocence and the right not to incriminate oneself on the one hand and the principles of effective public administration and social justice on the other hand.

BOOK REVIEW

POLITICAL PHILOSOPHY OF M.GORBACHEV AND THE PROSPECTS FOR A NEW WORLD ORDER
Book review Gorbachev M. In a changing world. Moscow : AST, 2018
Andrey Medushevsky

The current debate about the prospects of the new global legal order reveals the importance of the political philosophy of international relations, international law and changing institutional constructions of the global governance. The formation of transnational norms and institutions is a very controversial process with regards to such issues as the concept of global and European security; conflicts between values and interests; international and national priorities; the role of trust in international affairs and competing strategies of political elites and leaders in a changing world. The new book of the former Soviet President Mikhail Gorbachev combines all these topics in one by describing the historical origins of the current international debates, grounds of the modern international destabilization after the end of the Cold War and the collapse of the Soviet Union, and by formulating some recommendations in order to overcome the current “global turmoil”.

IN THE RUSSIAN CONSTITUTIONAL COURT

REVIEW OF LEGAL REASONING IN THE RUSSIAN CONSTITUTIONAL COURT JUDGMENTS: NOS.26-P–31-P (2019)

REVIEW OF LEGAL REASONING IN THE RUSSIAN CONSTITUTIONAL COURT RULINGS NOS.1831-O, 1833-O, 1835-O, 1838-O, 2145-O, 2181-O (2019)

Comparative Constitutional Review • Issue№5 (132) 2019