Available in Russian
CONTENTS
LEVELS OF DEMOCRACY
E-DEMOCRACY AND ITS FEATURES: THE EXPERIENCE OF EUROPEAN COUNTRIES
The development of digital democracy in European countries involves the active introduction of modern technologies and the promotion of digitalization in order to strengthen the political system and protect human rights and freedoms. Digital democracy helps to bridge the existing gap between civil society and the state, to eliminate unnecessary links in the relationship between them and to rationalize political participation. In the course of digitalization, new mechanisms are opening up for identifying the opinions of the population and involving them in the solving of the most significant issues of social and political life. Social networks play a significant role by providing up-to-date information in real time and helping to eliminate traditional barriers to civic participation, such as distance or social pressure. Digital democracy promotes the introduction of the institute of “electronic government”, which makes the services provided by public authorities accessible to the population almost around the clock. There is increasing differentiation in the provision of services, which are, as it were, “tailored” for each specific individual, perceived, first of all, as a client of the public administration. Automation of services, provided to citizens, helps to reduce possible human errors when entering data and guarantees a certain impartiality on the part of public authorities. Thanks to digital democracy, the crisis of legitimacy characteristic of representative democracy, caused by a loss of trust in existing political institutions, is largely overcome. In the context of digitalization, citizens gain much greater access to objective information and become less dependent on traditional sources of information, which largely determined their political views. Digital democracy also contributes to the development of participatory democracy, helping to overcome civic apathy and increase citizen participation in public politics. The use of digital technologies in everyday life, however, not only provides additional opportunities for growth and development, but also creates new risks. The development of digital democracy is hampered by the possibility of manipulating the consciousness of the population and the dissemination of information that does not correspond to reality. Citizens are often bombarded with a large stream of unfiltered news, so it can be difficult for them to distinguish what is true from fake information, which can be quite skillfully constructed using modern technologies. The so-called digital divide, defined as the inability of part of the population to properly use modern means of communication, remains a significant problem.
JOURNEY THROUGH GERMANY
GERMAN CONSTITUTIONAL DESIGN: GERMANY’S BASIC LAW TURNS 75
In 2024, the Basic Law of Germany (Grundgesetz für die Bundesrepublik Deutschland) turned 75 years old. Originally conceived as a temporary constitutional document, the Basic Law of the Federal Republic of Germany has evolved over the years into a permanent constitution of the modern unified German state. The author sees his main task in the analysing of the current Basic Law of the Federal Republic of Germany and the identifying of the unique features of German constitutional design. The most important qualitative characteristic of the Basic Law of the Federal Republic of Germany is the presence of immutable constitutional values, which are protected by the mechanism of eternal guarantees (Ewigkeitsklausel or Ewigkeitsgarantie), preventing both the change and revision of the constitutional text regarding the federal structure of Germany, regarding participation of the German Federal States (Bundesländer) in the federal legislative process, as well as constitutional norms on the supreme value of human rights and freedoms, and on the inviolability of human dignity (Menschenwürdekern), which, in essence, has a gravitational character in relation to all other constitutional rights and freedoms of a human and citizen. The author intentionally focuses on studying the content of the German constitutional concept of a modern democratic state capable of self-defense against the enemies of democracy (Konzeption der „wehrhaften Demokratie“), as well as on studying the role of the Federal Constitutional Court of Germany, which, within the German legal system, both de jure and de facto performs the function of guarantor of the constitution. The author comes to the conclusion that a minimum set of constitutional mechanisms that protect the Basic Law of the state from constitutionally hostile actions (namely, the immutable constitutional values and their eternal guarantees) will also be useful for the evolutionary development of the Russian Federation as a democratic and legal state.
CONSTITUTIONALISM AND DELIBERATE PARTICIPATION
THE INSTITUTION OF CITIZENS’ ASSEMBLIES, CABILDO ABIERTO AND DELIBERATIVE PARTICIPATION IN MODERN STATES
The article discusses the conceptual foundations and practice of incorporation of deliberative theory and deliberative institutions into the sphere of public law and constitutional law in the process of using various forms of citizens’ participation in making constitutional changes. The author reveals scholarly views on the interaction of the public sphere and constitutional democratic innovations, the international discussion on the nature and significance of democratic innovations, on the one hand, and the relationship between popular sovereignty and populism, their impact on the process of democratic participation and the promotion of the rule of law, on the other hand. In the countries of the New and Old Worlds, in the global South and in the countries of the European continent, institutions of popular participation, citizen involvement through assemblies and other forms of participation are actively used and find partial constitutional or legislative consolidation. The article examines the nature and specificity of primary citizens’ assemblies, the significance of Cabildo Abierto in Latin American countries, the experience of constitutionalization and legal regulation of modern forms of democratic participation in constitutional changes in South Africa, Colombia, Venezuela, Brazil, the influence of digitalization processes on the Brazilian system of citizen engagement and participation infrastructure based on parliamentary-type digital platforms. The author draws attention to the significance of the European model of deliberative creation of constitutions, citizens’ assemblies and other forms of collective participation in constitutional changes and public initiatives. The study notes that in comparative constitutional experience and in normative regulation, citizens’ assemblies and constitutional conventions are used to consolidate and express constituent power. This generative power as a social phenomenon is manifested in the processes of public and political mobilization. The mobilization nature of constituent power can have several ways of implementation: 1) self-mobilization or partial self-mobilization; 2) engaging public and legal mobilization, 3) forced mobilization by public authorities of artists (for example, theater and cinema), scientists and public figures. The article uses deliberative and epistemological approaches, methods of formal-legal, concrete-historical, comparative constitutional and complex analysis.
LAW AND RELIGION
STATE FUNDING OF RELIGIOUS MINISTERS: EXISTING MODELS AND PROSPECTS FOR THEIR DEVELOPMENT
The article deals with the complex and somewhat mythologized topic of financial and social security of religious ministers. The author uses legislation and law enforcement practice of 58 countries as the normative basis of the research, which determine the current regimes of direct and indirect state financing (or lack thereof) of the activities of religious ministers. The author uses the comparative legal method and the method of systematization, as well as methods of legal formalism and concrete historical analysis. This review of existing legislative approaches has made it possible to identify five models (variations) of budget allocations to financially support religious ministers. The first model entails constitutional or legislative direct state funding for religious ministers of only one or several denominations. This model is typical for countries that previously had a state religion. The second one obliges the state to reduce budget revenues by giving its citizens the opportunity to dispose of part of the income tax in favor of religious organizations, which becomes the financial support for religious ministers. The third model is related to the existence of a special church tax levied by some religious communities from their members along with income tax. In the fourth model, indirect financing in the form of tax benefits is provided directly to religious ministers (for example, the “synergy housing allowance”, which is a housing allowance for clergy in the United States), or to a religious denomination by giving it a special tax status. The fifth model reinforces the lack of state funding for the activities of religious ministers, which means, as a result, that donations become the main source of income of the clergy. It is noted that despite the differentiation of legal regimes, most countries of the European Union adhere to a participatory approach, including the adoption of measures supporting religious associations and their ministers: direct or indirect payment of salaries to religious ministers, full or partial social and medical insurance, and, as a result, pension provision. In conclusion, the author provides several directions for the development of state-confessional relations in the issue of state financial support for religious ministers.
LOCAL GOVERNMENT
MUNICIPAL REFORM IN RUSSIA IN THE CONTEXT OF WORLD MODELS OF LOCAL GOVERNMENT ORGANISATION IN FEDERAL SYSTEMS
The federal structure of a state as a special kind of multilevel system of governance gives an additional dimension to the theoretical discussion about the “social” or “state” nature of local self-government. Both of these approaches can have different institutional manifestations and that is why they cannot be considered decisive characteristics that allow for an unambiguous qualification of the institutional design of public authority unless a number of essential factors are taken into account. The general logic and the main trends in the development of federal systems as a special kind of multilevel governance is one such factor that must be taken into account not only in the process of cognitive activity, but also in the long-term strategic planning of social development. A closer look at several heterogeneous federal systems reveals one of the stable trends that have emerged in recent decades: the progressive and multidimensional inclusion of local self-government institutions in the multilevel system of public power institutions. The Russian experience in this respect follows the general trend, but not always consistently for political reasons. With the new law “On the general principles of organisation of local self-government in the unified system of public authority” was recently passed, this paper analyses three models of the organisational correlation between federalism and local self-government: the full attribution of local government to the exclusive competence of the entities of the federation; the establishment of the general foundations of the local level of government in federal constitutional legislation, with subsequent detailing within the framework of the legislation of the constituent entities; and the full inclusion of local government institutions as full members of the federative system. The nine federal states chosen for the analysis represent a broad sample of cases, allowing us to draw conclusions about how each of the three models works under different social conditions, which is made possible by the methodology of critical realism. The comparative study is not focused on reaching general conclusions, but on the application of the experience of foreign federal systems to the main provisions of the new law under discussion and subjecting it to scholarly criticism.
INFORMATION FREEDOMS IN MASS SOCIETY
FAKE NEWS ON THE MARKETPLACE OF IDEAS: A CRITICAL REVIEW OF THE AMERICAN THEORETICAL DISCUSSION
In recent years, there has been a significant increase in both scholarly and legislative interest in regulating the dissemination of disinformation on the Internet. Social networks form a specific information environment, which calls into question the established approach to freedom of speech. It is said that traditionally freedom of speech has been viewed as a guarantee that the people will independently filter out false ideas and arrive at the truth. However, something has evidently gone wrong: social networks have become inundated with false information, and their users are no longer inclined toward constructive dialogue. When considering public discourse as a marketplace of ideas, it is quite evident that it has failed and requires governmental intervention. This article critically examines such alarmist takes on the issue. The marketplace of ideas is a metaphor, not a model predicting the inevitable triumph of truth; therefore, it is unacceptable to justify governmental intervention in public discourse based on any inefficiency. Statements may only be restricted if they harm legally protected interests of citizens, and these negative consequences must be clearly explained and demonstrated by the legislators. There should also be proven causality between speech and harm. All these checkpoints are absent in propositions for fake news regulation. The negative consequences to discourse, rationality or democracy itself that are said to justify government regulation cannot be empirically verified. What is presented as evidence of the impact of fake news actually only confirms the breadth of its dissemination, irrelevant to any negative consequences of such content. The Internet or social media have not changed fundamental precepts of freedom of speech. That is the rejection of the state as an arbiter of truth or overseer of the rationality of citizens’ decision-making, and there are no valid reasons to abandon this principle. In the absence of harm, the current version of discourse on the Internet, including that represented by fake news, cannot be subject to government regulation.
THE CONFLICT BETWEEN DIGITAL PLATFORMS AND GOVERNMENTS: THE BLOCKING OF X (TWITTER) IN BRAZIL
The article discusses the decision of the Brazilian Supreme Court to ban the social media platform X (formerly known as Twitter) on August 30th, 2024. This decision was prompted by the closure of X’s office in Brazil, initiated by its owner, Elon Musk. The article analyzes the causes and consequences of this incident in the context of the ongoing global debate between governments and digital platforms. It pays special attention to its political implications, including the upcoming municipal elections in 2024 and the potential return of Jair Bolsonaro as president in 2026. It is noted that the main reason for the ban was political, aiming to ensure a favorable outcome in the municipal elections, which are traditionally seen as a precursor to the presidential election. Thus, the legal process was used to ensure the success of one political party in elections, which may have negative long-term consequences for constitutionalism. Additionally, it is not favorable for the constitutional order if parties use extra-legal (unlawful) means (threats of prosecution, “mudslinging”) during conflict. Due to economic and reputation reasons, Elon Musk had to make concessions and comply with court orders, opening a representative office in Brazil. However, integrating digital platforms into state bureaucracy destroys their potential for self-organization. The significance of self-regulation for digital platforms lies in their ability to create and adapt legal norms among themselves, which can help overcome the crisis of contemporary constitutionalism.
PRAXIS
TASSISTED REPRODUCTIVE TECHNOLOGIES: NON-OBVIOUS LIMITS OF PROTECTION
Since the adoption of the Russian Constitutional Court’s Decision No.756-O of 20 April 2023, a contentious issue has persisted in the Russian legal system concerning the possibility of using partial donation in a surrogacy program. In the present case the applicants (foreign nationals) challenged the provisions of Article 55(9) of Federal Law No.323 of 21 November 2011 “On the fundamentals of health protection of citizens in the Russian Federation”. At the time of the appeal, the contested norm stipulated that “surrogacy is the carrying and birth of a child (including premature birth) under a contract concluded between a surrogate mother (a woman carrying a foetus after transfer of a donor embryo) and potential parents whose sex cells were used for fertilisation, or a single woman for whom carrying and birth of a child is impossible for medical reasons”. The Constitutional Court of the Russian Federation initially accepted the applicants’ complaint, but then dismissed the case, having found no reason to believe that this very norm was the basis for refusing to satisfy the applicants’ legal claims for the transfer to them of children born under the surrogacy programme, given that the genetic material of only one of the parents (the father) was used in the programme. The article attempts to understand the reasons for this decision, the legal context within which the events unfolded, the substantive and procedural aspects contributing to this decision, as well as its possible consequences, taking into account the current regulation, which applies to Russian rather than foreign patients, but is still not entirely consistent. The authors draw attention to the risks of uncertainty and overly restrictive approaches in such a sensitive area as reproduction, analyzing in more detail the problem of discrimination on the basis of sex and health status, as well as the issue of preserving and strengthening family ties and the right of the child to family upbringing.
CONSTITUTIONAL PLACEBO: CRITICAL REVIEW OF THE RUSSIAN CONSTITUTIONAL COURT JUDGMENT OF 26 SEPTEMBER 2024 IN THE CASE NO.41-P ON THE RIGHT TO ORPHAN MEDICINES
Disputes related to the protection of the constitutional right of citizens to medicine supply at the expense of the budget are often the subject of consideration of the courts. However, only in 2024 the Constitutional Court of the Russian Federation for the first time attempted to assess the sufficiency of its provision. In the analysed Judgment, the Constitutional Court concludes that the current normative regulation is insufficient to ensure the rights of citizens to access to medicines and, therefore, contradicts the Constitution of the Russian Federation. However, the very statement of the problem and the justification of the solution proposed by the Constitutional Court are not uncontroversial. The article attempts to critically analyse the Court’s position set out in the Judgment in order to predict the possible risks of implementation in legislation and application of the mechanism proposed by the Court. In particular, using the method of legal modelling, the authors identify the risks associated with the filling of the reserve mechanism, as well as untimely and uneven distribution of funds allocated from the budget. The existence of these risks is due to both the abstractness of the Court’s description of the characteristics of the reserve mechanism and insufficient evidence in favour of the fact that the reserve mechanism is in principle capable of being a solution to the problems identified in the Judgment. The article also provides a brief description of the situations related to the problems identified in the Judgment (for example, the ineffectiveness of judicial remedies for patients with life-threatening illnesses), but unable to be resolved by the mechanism proposed by the Constitutional Court. The authors conclude that the absence of the scope of the right to medicine supply, enshrined in the legislation, does not allow to fully restore the violated constitutional right. Determining the scope of the right to medicine supply within the framework of legal doctrine is an urgent task of subsequent research.