Available in Russian
DECEMBER • 2022 – JANUARY • 2023
Czech Republic, Faroe Islands, Germany, Russia, Slovakia, South Korea, Tunisia, Turkey, USA
EDITORIAL: 30 YEARS OF DEVELOPMENT OF CONSTITUTIONALISM
“COMPARATIVE CONSTITUTIONAL REVIEW”: THE JOURNAL AMID THE CURRENT OF STREAMING TIME
This article summarizes main facts about the role, development and achievements of the prestigious Russian and international academic journal – “Comparative Constitutional Review” from its creation till 30th year anniversary in 2023. Coming into life in the period of dramatic transition from Communist dictatorship to democracy in Eastern Europe and Russia, the Journal clearly announced its mission as the promotion of the law based state and civil society in all Post-Socialist countries. The fulfillment of this mission included such priorities as general information of academic community about transforming theoretical basis of comparative legal studies, new practical requirements in constitutional engineering, analysis of the changing legal policy agenda in respective countries, and last but not least, the creation of representative pool of international experts capable to evaluate these trends in value-free reliable manner. In process of development, the Journal passed three main stages – its formation (1993–2003), critical reappraisal (2004–2013) and synthesis (2014–till now), reflecting the dynamic of constitutionalism – from liberal triumph era to its conservative revision and the current globalization crisis in forms of legal fragmentation, populism and re-invented legal nationalism. Confronting these trends, the Journal’s publication list (up to now more than 150 issues and about 2000 articles) includes scholarly papers on all vital subjects of modern constitutionalism. Among them, global and Post-Soviet legal transformation, constitutional ideology, reforms and contra-reforms, human rights standards and their legal interpretation, parliamentary democracy, federalism and regionalism, elections and political party systems, separation of power modalities, central and local administration, comparative constitutional jurisprudence and many others. The permanent focus of the Journal’s attention is the Russian constitutional order, which become the object of scrutiny analysis of its foundation, development and contradictions in terms of its typology and original characteristics, institutional projection, the impact of constitutional reforms, formal and informal practices, judicial interpretation in the dynamic of Constitutional Court’s decisions. Putting all these trends under academic debate, the Journal played not only the role of just chronicler, but active participant of constitutional transformation providing many reform projects, legal amendments and expert recommendations.
FEDERALISM: DESIGNING THE FUTURE
FEDERATION VS THE EMPIRE, OR HOW TO JUMP OUT OF THE “RUT”
In the first part of the article the author criticizes the approach to explaining the reasons for the failures of Russian modernizations, which ignores the role and importance of the institutional factor. Meanwhile, institutions, including the model of organization of public authority, are by no means a “hostage” of natural, geographical and socio-cultural factors that shape public consciousness. On the contrary, institutions themselves are capable of minimizing mental obstacles to modernization, the essence of which boils down to the progress of law. But this requires an understanding of what constitutes a “rut” (A.Auzan’s concept), i.e. what exactly prevents the normal functioning of institutions. In search of such a generalized obstacle, the author turns to the concept of the imperial syndrome proposed by E.Paine and developed by him together with S.Fedyunin. One of the elements of the imperial syndrome is the great-power (imperial) consciousness of Russian society. It, according to the author, has objective reasons that lie primarily in the spatial parameters of Russia, its huge reserves of natural resources, as well as the degree of world significance that the country had in the world for many decades. This peculiarity of public consciousness distorts both the very design of modernized institutions and the nature of their functioning. Overcoming the dependence on objective reasons and historical inertia requires precisely jumping out of the “rut”, i.e. to take the path of radical restructuring of institutions. This is the subject of the second part of the article, which outlines some measures that would change political practice and political culture in Russia. We are talking about the formation of people’s regional identity, equal in strength to the national identity. Such a competition between the two identities, according to the author, could significantly reduce the influence of the “geopolitical” consciousness and form a civic subjectivity. As one of such measures it is proposed to ensure much greater independence and responsibility of the subjects of the Russian Federation, but subject to certain conditions that block separatist aspirations. The second major measure, and at the same time one of the anti-separatist conditions, is the transition to a parliamentary model of regional government organization, which would help reduce the likelihood of leaders who build their political careers on nationalist speculation coming to power.
POINT OF VIEW
THE PRINCIPLE OF TERRITORIAL INTEGRITY OF STATES AND THE RIGHT TO A PROTECTIVE SECESSION
Secession, which was almost the main way of forming new states before the Second World War, began to be perceived after 1945 as a challenge to one of the basic principles of international law – the territorial integrity of States – and as associated with chaos, division, fragmentation, and instability. The secession process itself began to be perceived exclusively in the context of decolonization, and in other cases the right to self-determination started to be perceived as limited by the principle of territorial integrity and as something to be implemented primarily within an existing State (internal self-determination). However, in exceptional cases and as a last resort, we can talk about the realization of the right to external self-determination in the form of a decision for unilateral secession from a State so as to create a new State or to join another State (remedial secession). However, there is no consensus in the doctrine and practice of States on almost every issue, primarily regarding the very existence of the right to remedial secession and who can exercise it (that is, who can be considered a “people” for the purposes of secession), as well as under what circumstances unilateral secession will be allowed by international law. This provides grounds for considering the right to remedial secession only as a customary norm of international law which is still in the process of formation, not yet having received recognition (tacit consent) by a significant enough number of States in order to be considered mandatory for all States. The tendency to link secession with the issue of recognition by third countries of the State that emerged by secession has led to the emergence of unrecognized States arising from “de facto successful secessions”. This indicates the presence of serious gaps in international law and actually contributes to the freezing of the conflict, not its resolution. The author posits that States deliberately prefer to leave this area without detailed regulation in order not to tie their hands and to leave these issues to correspond to real politics, not law.
THE WINDING PATH OF JUDICIAL REFORM IN MODERN RUSSIA
This article provides a detailed overview of the process of judicial reform in the Russian Federation, with emphasis on the past fifteen years. It argues that the political context plays a decisive role in which reforms get adopted and implemented. After reviewing struggles in the late Yeltsin and early Putin years to find a balance between the independence and accountability of judges, it charts the zig-zag pattern of reform and counter-reform that prevailed since 2005 and remained notably unchanged throughout the arguably liberal Medvedev presidency. In the realm of judicial governance this included the increasing role of the Presidential Commission on Judicial Nominations in selection and promotion of candidates for judgeships, the elimination of the High Arbitrazh Court, and the gradual subordination of the Constitutional Court to its political masters – all signs of a judicial counter-reform that reflected growing authoritarianism in the political realm. At the same time, a series of measures, often initiatives of Supreme Court Chairman Vyacheslav Lebedev, were undertaken to improve the efficiency of the courts. These included the expansion of judicial capacity (with the creation of the new justices of the peace); several simplifications of civil, arbitrazh, and criminal procedure (through the use of judicial orders, summary procedure, court fines, and the guilty plea procedure); the remaking of the system of appeals; and the replacement of some crimes with administrative offenses. A significant portion of the article also focuses on what consequences the reforms (especially ones relating to the jurisdiction of the courts) had on the number of jury trials, which in Russia result in a high rate of acquittals. The article concludes with a snapshot of the courts in early 2020, of the ideas for further reform that were in the air (especially those offered by the Kudrin team), and of the impact on the courts of the Constitutional Amendments of 2020 and of the special military operation in Ukraine, as well as with thoughts on the changing reality of the dialogue between Russian scholars and their colleagues abroad and on how the above-mentioned events may affect the prospects for future judicial reform.
THE RUSSIAN CONSTITUTIONAL COURT IN 2022: UNDER THE SIGN OF STABILITY
The article describes the results of the work of the Russian Constitutional Court in 2022. Based on five years of observation, the author uses an approach that reviews the legal regulation of the organization and activities of the Constitutional Court, together with relevant statistical data characterizing its work. This data includes the number of appeals, the number of the most significant decisions, the categories of cases considered, the ratio of various types of final conclusions in its rulings, and its use of written and oral proceedings. The dynamics of the legal regulation and the statistical indicators do not give grounds for the conclusion that the status of the Constitutional Court changed significantly after the constitutional reform of 2020 and that something new should be expected from constitutional judicial practice in the short term. In 2022 the composition of the Court changed. The composition of the Court was not only reduced in number but was also updated in membership, for the first time since 2010. Nevertheless, the tendency of the Court to function without a full complement of members remained. The article also notes that over time, the average age of the justices of the Constitutional Court has increased. Now it is dominated by men over 65 years old. The international legal aspect of the activities of the Constitutional Court is also analyzed. After the rupture of legal relations between Russia and the Council of Europe, the Constitutional Court stopped referring to the decisions of the European Court of Human Rights in its decisions. In addition, in 2022 the Court withdrew from two authoritative international associations of constitutional review bodies, while still maintaining ties with three such regional associations. In 2022, when the accessibility of the European Court of Human Rights for Russian citizens was changed, the Constitutional Court began to be seen as a replacement for the Strasbourg Court. But so far there are no signs of the beginning of a new reform of the Court. At the moment, the Court retains its efficiency in its established forms of activity.
CONSTITUTIONAL AND STATUTORY COURTS OF THE SUBJECTS OF THE RUSSIAN FEDERATION: BETWEEN LAW AND POLITICS
In this article, the author conducts an interdisciplinary study of the constitutional (statutory) courts of the subjects of the Russian Federal. The author proposes and tests original scientific tools that are a symbiosis of the methodologies of jurisprudence and of political science. The study is built on the principle of a case study, which allows for an in-depth study of each of the cases included in the sample. The sample includes 8 cases: the constitutional (statutory) courts of the Republic of Tatarstan, Mordovia, Ingushetia and Karelia, St. Petersburg, Kaliningrad, Sverdlovsk and Chelyabinsk regions. As methods for collecting and analyzing data, the author uses content analysis of legal acts, court decisions, specialized research, and media publications and also expert interviews. The empirical material used in the article is of particular value. The group of experts interviewed by the author is unique and includes judges, employees of constitutional (statutory) courts, officials, and representatives of the scientific community whose professional activities are directly or indirectly related to these courts. Using the example of constitutional (statutory) courts, the author shows how the proposed interdisciplinary tool makes it possible to study aspects that are inaccessible within the framework of a disciplinary approach. The study is structurally divided into thematic sections and arranged chronologically from the period of creation of these constitutional (statutory) courts to the moment of their centralized abolition. This structure of the article allows a detailed analysis of the legal and political aspects of constitutional (statutory) courts in different periods of their development. The author analyzes and develops existing theoretical approaches to conducting political and legal research, suggests directions for joint study by jurisprudence and political science, and identifies issues that require further discussion. The practice-oriented interdisciplinary tool described in the article is universal. Formed from the methods of jurisprudence and political science, this tool will allow research of institutions which have a mixed political and legal nature, like bodies for constitutional normative control, from a new, more complex side.
CONSTITUTIONAL CHANGE: A NEW FACET OF COMPARATIVE CONSTITUTIONAL LAW
BOOK REVIEW: ROUTLEDGE HANDBOOK OF COMPARATIVE CONSTITUTIONAL CHANGE / ED. BY X.CONTIADES, A.FOTIADOU. LONDON : ROUTLEDGE, 2020
No constitution can remain unchanged for an extended period of time. This fact has long been recognized by constitutional scholars and shown by the practice of numerous states. Objective and subjective conditions, including political, financial, and biological crises as well as internal socio-economic problems of states lead to the inability of constitutions to fulfill their main functions and to their changing with the needs of the times. Changes may concern both individual provisions in the text of the constitution and constitutional identity and values. The consequences of constitutional changes taking place in specific states also vary. In an effort to develop common approaches to understanding this phenomenon, the academic discipline of constitutional law is increasingly contributing to the study of the factors that bring about constitutional changes as well as the processes and results of those changes. The circumstances of 2020 showed that constitutional amendments have become a natural and justified stage in the constitutional formation of many states, including Russia. Changes in the constitutions of different states, for instance, are becoming a subject of research in the field of comparative constitutional law. Constitutional amendments and other forms of constitutional change, as well as their prerequisites, justifications, procedures and consequences, currently underlie constitutional theory and practice, especially in the international context. The basic rules and values embodied in a constitution presuppose the effective exercise of state power and the guarantee of fundamental human rights, even while constitutional norms inevitably develop in accordance with current realities. Sometimes even significant changes to the constitution are justified if this is important for the legitimacy of the constitutional order as a whole, preservation of the democratic foundations of government, or adaptation to political, economic and social transformations. Therefore, a new task of scholars in the field of comparative constitutional law is to thoroughly study the processes of constitutional change, which may be even more important than the processes of adopting constitutions. Both the conceptualization and the systematization of constitutional change, as well as practical recommendations based on the experience of various countries, could contribute to effective amendments and other instruments of constitutional change, thereby assisting in the creation of effective and stable constitutions.
“IS SILENCE GOLDEN?”: THE CONSTITUTIONALITY OF THE REFUSAL OF A PERSON WHO HAS ENTERED INTO A PRE-TRIAL COOPERATION AGREEMENT TO ANSWER QUESTIONS FROM THE DEFENSE
This article examines the constitutionality of the refusal by a person who has entered into a pre-trial cooperation agreement to answer the defense’s questions in the course of judicial interrogation. Referring to the witness immunity provision of the Russian Constitution, courts deny the defense the opportunity to ask any questions of a person who has entered into a pre-trial cooperation agreement and who testifies against the defendant. At the same time, the refusal of this person to answer questions by the defense is not regarded as a refusal to testify and, accordingly, does not entail the consequences of non-compliance with the pre-trial cooperation agreement. The article critically analyzes the most recent practice of the Russian Constitutional Court on this issue. Unfortunately, the Constitutional Court does not consider the current approach to be unconstitutional. This article, however, argues that this approach deprives the defendant of guarantees against unfounded accusation and conviction and undermines the principles of adversarialness and equality of opposing sides in criminal proceedings. This is due to the fact that the participation of the defense in the judicial interrogation of a person who has entered into a pre-trial cooperation agreement is one of the key elements of the mechanism for refuting incriminating testimony since it is these questions that make it possible to detect inconsistencies and contradictions in that person’s testimony and to level the risks of concealing important details of the case. The defense should be given the right to ask questions because, by observing the emotional reaction of this person and his behavior in the process of answering, it is possible to determine the degree of reliability of his testimony. Based on the case law of the Russian Constitutional Court and the European Court of Human Rights, it is argued that the defendant’s right to examine a person who has entered into a pre-trial cooperation agreement should be enshrined in law, and this person’s refusal to answer the defense’s questions should lead to termination of the pre-trial cooperation agreement with him.