Available in Russian
CONTENTS
FEATURE: LAW AND MEDICINE
“GET WELL FROM HERE”: CONSTITUTIONAL AND LEGAL DEFINITION OF “MEDICAL CARE”
The purpose of this article is to determine the content of the term “medical care” in subjective constitutional law established by Article 41 of the Constitution of the Russian Federation. The necessity to examine this issue arises from the need to define the right to medical care. While industry regulation in the healthcare sector, primarily focused on administering the healthcare system, provides a normative definition of “medical care,” the existing definition is not unequivocal and gives rise to significant gaps and conflicts. These primarily concern determining what constitutes medical care, which claims of citizens regarding medical care are protected by the Constitution, and to what extent these claims are protected. Nevertheless, the common approach in academic discourse and judicial practice identifies the subjective constitutional right to medical care with the administrative powers of citizens established in sectoral legislation. This approach is deemed unacceptable, as it diminishes the significance of subjective constitutional rights and restricts the scope of human rights without adequate justification. Furthermore, it enables the limitation of the subjective constitutional right to medical care without following proper procedure. This article proposes an alternative definition of the term “medical care” from a constitutional law perspective, aimed at distinguishing medical care from other types of medical and non-medical activities. It aims to highlight criteria for classifying a particular activity as medical care, thereby giving independent meaning to this term in constitutional law. For this purpose, it introduces criteria based on the nature and purpose of the activity and its potential harm. According to the author, this definition can be utilized in analyzing the content of the subjective constitutional right to medical care, replacing normative definitions. Consequently, it allows for the separation of a person’s subjective constitutional right to medical care from administrative regulation aimed at managing the healthcare sector.
PERSONAL AUTONOMY AS A PRINCIPLE OF MEDICAL CARE: BETWEEN PATERNALISM AND (IMAGINARY) FREEDOM OF CHOICE
The article presents a discussion regarding two key principles of the interaction between doctors and patients – paternalism and freedom of personal choice, proposed, respectively, by traditional medical ethics and by bioethics. The effect of these principles is traced in the history of medical relations in Russia, in both its ethical and legal components. The stability of paternalistic ideas is shown, with not only subjective, but also objective (relating to the distribution of competencies) reasons for this. At the junction between these principles, a “middle path” is proposed – the principle of providing respectful assistance. To substantiate it, based on the positions of I.Kant and modern research, the category of patient autonomy is clarified and directions for creating guarantees of it are proposed, addressing issues of the (in)adequacy of existing standards for the time of patient appointments, the need to develop communicative scenarios for the interaction of medical and other personnel of medical institutions with patients, supplementing school educational programs, and forming among a wide range of people ideas about health care and the principles of providing medical care. These proposals are a way to ensure that the institution of informed consent, which in Russia is designed to reflect the principle of autonomy of the will of a patient, functions in accordance with its original purpose. In addition, the proposals are aimed at increasing the level of compliance in patients’ behavior while receiving competent treatment, corresponding to the objectives of the healthcare system. From a theoretical point of view, a change is called for in the perception of the concept of patient autonomy, which requires not just non-interference in making competent decisions but also additional governmental efforts. Theoretical considerations are supplemented by a demonstration of their application in practice, the need for which is not obvious despite its simplicity.
ASPECTS OF MEDICAL CONFIDENTIALITY PROTECTION IN THE USE OF TELEMEDICINE TECHNOLOGY IN HEALTHCARE
The article discusses the issue of medical confidentiality arising from telemedicine technologies, medical devices, and medical applications. With digitalization, use of these technologies, devices and applications is associated with the risk of leakage of personal data, breach of medical confidentiality, and disclosure of confidential patient information. It is important to ensure that these risks are mitigated to protect patient privacy and confidentiality. The study examines the legal nature of medical confidentiality, its relationship with other types of secrets, and the reasons why it must be respected. To investigate medical confidentiality, the author also examined the problem of citizens’ inability to access anonymous paid medical services when using telemedicine technologies. The author concluded that complete anonymity cannot be guaranteed, but pseudonymization of patient data can protect the right to anonymous receipt of paid medical services. The article reviews the use of telemedicine technologies by doctors and highlights the risk of disclosure of medical confidentiality when third-party communication applications are used. Statistical data shows that patients’ medical data is compromised in such cases. The article uses formal-legal and comparative methods, analysis, deduction, and induction, to reach its conclusions and to make recommendations. In order to find a solution to the issue of observing medical confidentiality when using medical applications for remote monitoring of a patient’s health status, Russian legislation was compared with foreign legislation as applied. This comparison reveals that Russian legislation does not fully regulate the use of medical applications in this area. Amendments to Russian legislation, based on German and European Union legislation, are proposed. Additionally, a regulatory legal act should be developed to define measures for protecting patients’ confidential information when medical devices and applications are used.
LAW IN A DIGITAL ERA
DEMOCRATIC CONSTITUTIONAL CROWDSOURCING AND MODELS OF DIGITAL CONSTITUTIONALISM FOR PUBLIC LEGAL COMMUNICATION AND CONSTITUTIONAL CHANGES
The article discusses the theoretical foundations and applied aspects of democratic constitutionalism; democratic constitutional crowdsourcing and constitutional inclusion in the information and algorithmic society; and the relationship between digital constitutionalism and popular sovereignty, on the one hand, and digital sovereignty and citizen participation, on the other hand. The author discusses scholarly approaches to understanding models of digital constitutionalism in the context of the international debate in comparative constitutional discourse and jurisprudence, as well as the prospects for self-determination of the people in analogue and digital forms of constitutionalism. The study provides a critical analysis of democratic constitutionalism from the perspectives of deliberative participation and digital engagement, various versions of popular constitutionalism, and their relationship with the cult of the written constitution and with judicial review of constitutional laws. It notes that the voice of the people in modern constitutionalism, based primarily on the cult of a written constitution, was not immediately heard, although the appeal to popular sovereignty as a constitutional principle of democratic states is a distinctive feature of popular constitutions. The author analyzes the idea of popular assemblies in modern constitutional theory, which has changed under the influence of digital and information technologies. These citizens’ assemblies are not intended to replace representative government, which itself needs preservation and modernization. Rather, their role is to fulfill the subsidiary but extremely important function of direct citizen participation in discussion and decision-making on publicly significant issues. The article analyzes models of digital constitutionalism in modern Russian and international jurisprudence and in scholarly publications. It covers the prospects for creating intellectual and normative foundations for interactive constitutions and electronic legislation, an international bill of rights on the Internet, legal recognition of information interests and needs, and opportunities for using constitutional crowdsourcing technology to discuss existing constitutional norms and create a new constitution. The article used deliberative and epistemological approaches, methods of formal-legal, concrete-historical, comparative constitutional-legal and complex analysis.
DIGITALIZATION OF LOCAL GOVERNMENT AND ITS FEATURES IN EUROPEAN COUNTRIES
In European countries major changes are taking place in the information sphere, contributing to the emergence of new forms of communication between public authorities and the population, including at the local level, which is closest to citizens. Most municipalities in European countries are actively promoting digitalization and developing their websites, taking into account expanding technological capabilities and the growing expectations of citizens. Thanks to digitalization, the latter can participate in local public debates and use municipal services while remaining within their personal space. The most important direction in modernization of local government is the creation of digital platforms through which citizens acquire the opportunity to express their opinions and participate in consultations regarding proposed public decisions. Digitalization ultimately rationalizes political participation and reduces the distance between the population and public authorities. By removing unnecessary intermediaries in relations between them, it helps overcome alienation between society and the state. Citizens now can solve many of their problems electronically without having to appear at the relevant authorities. They can monitor the activities of local politicians and officials on a regular basis via the Internet, helping to increase the transparency of these activities. While being a tool for the development of local democracy and the modernization of municipal government, digitalization at the same time entails certain “unintended negative side effects,” including the exclusion from digital communications of that part of the population which is not able to use these communications due to poor health, various age restrictions, or innate technophobia. The process of digitalization of local government is also hampered by the lack of financial resources of municipalities and by insufficient demand for online innovations both from the population and from that part of the municipal bureaucracy which inherently fears novelty and perceives the prospect of computerization of the administrative process as a direct threat of job loss.
POINT OF VIEW
LAW IN THE EPOCH OF COGNITIVE WARFARE: HOW TO PROTECT CONSTITUTIONALISM FROM CHALLENGE OF THE NEW MANIPULATIVE TECHNOLOGIES?
Cognitive Warfare – the notion, introduced in public space in 2020 – is at the core of academic and political debates of recent times for the explanation of the current military and political conflicts. As opposite to more traditional kinetic wars the cognitive ones concentrates on human brain and the very capability of reality constructivism by using new technologies of mind control, perception and social behavior. This new type of war characterizes by totality of information manipulation, substitution of reliable knowledge by fiction (post-truth condition), the dissolution of borders between legal and illegal use of force, and criteria of their interpretation. Revolution in studies of the brain opened the way to a new interdisciplinary area – cognitive jurisprudence and neuro-law – but its methods and technologies have positive as well as negative effect. This situation concerns cognitive grounds of law, the sense of traditional legal principles and norms interpretation, ethics and law relations, definitions and linguistics of judicial decisions. The author analyses new challenges to traditional mindsets in the areas of international, constitutional and criminal law, as well as the law of war and peace in order to find the solution of one problem – how to reestablish the authentic role of constitutional guarantees in front of technologies of cognitive-information manipulations.
BICAMERALISM
CONSTITUTIONAL-LEGAL BASIS FOR THE PARTICIPATION OF SECOND CHAMBERS OF FEDERAL PARLIAMENTS IN THE LEGISLATIVE PROCESS: A COMPARATIVE ANALYSIS
The role of the second chambers of federal parliaments in the legislative process is elucidated in this study through a comparative analysis of twenty federations. There are three primary areas of participation by these chambers in lawmaking: the introduction of bills in the chamber, the discussion and adoption of laws, and the coordination of the positions of the chambers on controversial bills. The first part of the article concludes that in most federations, bills can be submitted to either of the chambers. Exceptions may arise based upon the nature of the bill, the issues to be resolved, and the subject of a right of legislative initiative. The possibility of introducing a bill initially in the second chamber indicates equality of the chambers in this particular aspect, although it does not determine the quality of the bills. The second part of the article considers three aspects of the role of the second chambers in the legislative process. Various approaches to legislative protection for the subjects of the federation are analyzed: (1) by their representatives in the upper house during discussion and adoption of laws, (2) through the direct participation of subjects of the federation in federal-level lawmaking by submission of their bills in the chamber, and (3) by exercising the right to approve certain bills adopted by parliament. In ethnic federations, the ethno-linguistic factor significantly impacts the legislative process and the role of the second chamber. Inconsistency in the opposition between the chambers in different systems is seen to be dependent on the method of their formation and the nature of political representation. The third part of the article reveals reasons for disagreements between the chambers on draft laws: a discrepancy between national and regional interests, the clash of interests among various political groups and their reflection in the activities of the chambers, differing understandings by both chambers about society’s needs for specific bills and their content, and the veto power of one chamber over a bill submitted by the other chamber. The article characterizes the suspensive veto as a tool that opens up the possibility of joint discussion and a compromise solution by the chambers. It discusses the justifications for an absolute veto in the event of a complete rejection of the bill by the second chamber, as well as in a case when, after rejection by the chamber, a compromise is reached with the help of additional procedures. The experience of federations leads to the conclusion that due to the vastly different historical conditions of the formation and functioning of federal states, a single universal model of the role of the second chamber in the legislative process is impossible. However, this does not exclude the possibility of selectively borrowing individual elements, especially organizational-technical ones, from the experience of other federations.
CONSTITUTIONAL GUIDE
SRI LANKA: CONSTITUTIONALISATION OF RELATIONS OF RELIGIOUS GROUPS AND THE PROBLEM OF DISCRIMINATION AGAINST MINORITIES
Sri Lanka’s legal system is highly constitutionalised, including with regard to the status of Buddhism. Constitutional rules and procedures are used to protect Buddhist teachings and to regulate the life of the sangha and its interaction with society, as well as the activities of other denominations. These norms take into account not only democratic values but also the value of Buddhism as a majority religion. This article examines the history of statehood and Buddhism in Ceylon, the constitutional status of Buddhism, the practice of the Sri Lankan government in imposing restrictions on freedom of religion, the practice of the Supreme Court in cases involving these restrictions, and the relationship between religious practices and human rights. The model used by Sri Lanka is a hybrid one: on the one hand, it grants legal privileges to a particular religion and, on the other hand, enshrines freedom of religion and the principle of non-discrimination. The author tries to answer three questions: whether the Sri Lankan model is an effective way to address political problems, whether it conforms to human rights standards, and whether it strengthens the sangha and sasana. The constitutionalisation of Buddhism has a twofold effect: on the one hand, it contributes to the involvement of monks in public and political life, and, on the other hand, it turns Buddhist doctrine into an element of the political system and legal order. This phenomenon of constitutionalisation has both positive and negative sides: the former includes the preservation of Buddhist tradition and its positive impact on society, while the latter includes the aggravation of inter-confessional conflicts. Russia approaches religious issues in a fundamentally different way – from a position of formal neutrality. Unlike Sri Lanka, it does not face the problem of inter-ethnic or religious enmity. However, it has an obvious need to humanize social relations and actually translate religious values into everyday life – and here it could borrow a lot from Sri Lanka’s experience.
CONSTITUTIONAL JUSTICE IN RUSSIA
“THERE IS NOTHING MORE IMPORTANT THAN THE LITTLE THINGS”, OR THE PROBLEM OF EXECUTION OF DECISIONS OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION
Execution of decisions is the key to proper functioning of the institutions of constitutional control and of ensuring constitutional legality in the state. An analysis of the implementation of decisions of the Constitutional Court of Russia demonstrates a generally positive dynamic. Yet there still are a number of problems associated with the adoption of normative acts in pursuance of decisions of the Constitutional Court, as well as with law enforcement agencies’ proper consideration of the legal positions of the Constitutional Court. Further improvement of the mechanism for executing decisions requires an analysis of the changes that have already taken place in legal regulation of the procedures and deadlines for executing decisions and of the duties and responsibilities of authorities. The author, using formal legal and historical legal methods, assesses the state of legal regulation of the execution of decisions of the Constitutional Court and analyzes the decisions of the Constitutional Court and of courts of general jurisdiction in cases of constitutional complaints, analytical reports and other materials of the Constitutional Court and other public authorities, and articles and publications on the implementation of decisions of constitutional courts. This analysis shows that the federal authorities involved in the legislative process initially lacked a clear idea of how the decisions of the constitutional control body should be properly implemented. Amendments to legislation in this area were aimed at solving other problems not related to the execution of decisions of the Constitutional Court. The main problem in legislation remains the lack of detailed regulation of the procedure and timing for the adoption of federal laws pursuant to decisions of the Constitutional Court. The problem of codifying norms articulated by the Constitutional Court remains unresolved. Currently the execution of decisions is carried out mainly by the courts. In the law enforcement mechanism there is no procedure for applying compensatory mechanisms for a complainant if the Constitutional Court has established the impossibility of reviewing decisions in his case, nor are there other ways to restore the rights of citizens against whom unconstitutional norms have been applied.