«Comparative Constitutional Review»
Issue №5 (108)

CONSTITUTIONAL WATCH
MAY – AUGUST • 2015

Belarus, Greece, Kosovo, Nepal, Pakistan, Palestinian National Authority, Russia, Spain, Singapore, USA

SPECIAL REPORT

DEVELOPMENT OF THE RIGHT OF ACCESS TO INFORMATION IN THE FIELD OF PUBLIC GOVERNANCE IN RUSSIAN AND GERMAN CONSTITUTIONAL LAW
Elena Gritsenko, Ekaterina Babelyuk, Maria Proskuryakova

The article offers a comparative review of the constitutional and legal bases of the right of access to information about the activities of public administration in Russia and Germany. It presents approaches to the definition of the content of and restrictions to this right in both legal systems.

THE TRANSFER OF STATE POWERS TO ORGANIZATIONS: LEGAL MECHANISM
Svetlana Vasilieva

Based on Russian legislation and the latest practice in transferring state powers to organizations, this article analyses the general legal approach to understanding this process and formulates rules that could serve as the basis for appropriate legal mechanisms. In connection with the global and multidisciplinary features of the transfer of state powers to organizations, the author does not guarantee full and complete coverage of the topic. In addition to the theoretical aspects the article contains some examples of privatization, outsourcing, the problems of implementing the theory of the service state, some cases involving organizations providing public services and giving concessions of cultural objects.

POINT OF VIEW

CAN YOU TELL WHEN AN ILLIBERAL DEMOCRACY IS IN THE MAKING? AN APPEAL TO COMPARATIVE CONSTITUTIONAL SCHOLARSHIP FROM HUNGARY
Renata Uitz

As long as the search for a global constitution remains an aspiration of comparative constitutional scholarship, the ability to identify trends and forces that drive constitutions away from commonly accepted minimum standards should be a matter of special concern for practitioners in the field. Recent Hungarian constitutional developments offer a helpful litmus test for reflecting on the difficulties comparative constitutional law analysis faces when tackling the gradual degradation of a constitutional regime. This article argues that routine comparative constitutional law analysis is prone to overlook symptoms of gradual constitutional decline and that strong confirmation bias steers analysis towards seeing dialogue where defiance drives local actors. 

FORUM: RIGHT TO COUNSEL AND STANDARDS OF JUSTICE

CONSTITUTIONAL FOUNDATIONS OF THE QUALIFIED LEGAL ASSISTANCE SYSTEM’S ORGANIZATION AND REFORMATION IN THE RUSSIAN FEDERATION
Tamara Morshchakova

The constitutional content of the right to qualified legal assistance is considered by the author in terms of relevant problems of advocacy reform, including those related to the implementation of mechanisms for access to legal representation not only by advocates, but also by lawyers who are currently providing commercial legal services. The author gives an interpretation of the right to legal aid, its unrestricted nature, and compares it with an absolute right to judicial protection, the right to defense counsel in criminal proceedings, and the right to free legal assistance. 

THE INDEPENDENCE OF LAWYERS: INTERNATIONAL STANDARDS AND FOREIGN EXPERIENCE
Wilder Tayler, Róisín Pillay, Vidar Strømme

The review includes some materials from the discussions held during a joint roundtable of the International Commission of Jurists and the Institute of Law and Public Policy on “Providing the independence of lawyers: Russian and foreign experience” in May 2015.

LEGITIMACY OF POWER

“MONARCHISATION” OF PRESIDENTIAL POWER
Mikhail Krasnov 

The article attempts to demonstrate that, despite the similarity of the institutions of monarchy and presidency, they are fundamentally different from each other. Therefore, a president should be considered not as a “republican monarch”, but as an “ersatz” monarch, and not in its metaphorical but in its literal meaning. This fact has practical consequences, expressed in the conscious or unconscious effort of a president to acquire monarchist features lacking in his office, primarily permanence of tenure and avoidance of responsibility.

POLITICS IN CONSTITUTIONAL JUSTICE

CONSTITUTIONAL WEAPON OF POLITICS
Vasily Zagretdinov

The enhancing role of the judiciary in recent times naturally led to a growing interest in the phenomenon of judicial control. What role do constitutional courts play in the system of separation of powers? Are constitutional courts independent bodies? How does the power of constitutional courts to declare a law unconstitutional relate to the role and authority of parliament as the supreme representative body? The present article contains an analysis of the special role of constitutional courts in the formation of state policy, focusing on the relations between constitutional courts and other governing institutions.

PRAXIS

CHANGING THE ORDER OF ITEMS IN A CONSTITUTIONAL COURT’S JUDGMENTS: WHY DOES IT CHANGE THE SUM?
Olga Kryazhkova, Yuliya Rudt

This study shows the key approaches to selection and structuring of arguments by the Russian and South African constitutional courts. The authors focus on cases involving human rights of people living with HIV as illustrations of ineffective techniques used in Russian constitutional practice.

IN THE RUSSIAN CONSTITUTIONAL COURT

REVIEW OF JUDGEMENTS OF THE RUSSIAN CONSTITUTIONAL COURT JUNE – JULY • 2015

COMMENTS

IN PRINCIPLE, NO… BUT YES, IT IS POSSIBLE! THE RUSSIAN CONSTITUTIONAL COURT AND THE BINDING POWER OF DECISIONS OF THE EUROPEAN COURT OF HUMAN RIGHTS
Alexander Blankenagel, Ilya Levin

The commentary concerns the decision of the Russian Constitutional Court on the limits of the mandatory effect of decisions of the ECHR. The problem is a problem well known also to other courts – supremacy of the constitution in relation to international treaties – but has only partially been resolved well. The Constitutional Court tries to concretize the inter-judicial dialogue by limiting the “monologue” of the ECHR, an approach which has some sense and justification. 

Comparative Constitutional Review • Issue№5 (108)