CCR № 2 (141) 2021

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CONTENTS

CONSTITUTIONAL WATCH

FEBRUARY – MARCH • 2021

Brazil, Czech Republic, France, India, Israel, Portugal, Slovenia, Switzerland

THEORY OF CONSTITUTIONALISM

PROBLEMS OF THE CONCEPT “GUARANTOR OF THE CONSTITUTION”

Mikhail Krasnov

The article critically analyses the concept of “guarantor of the constitution”. Briefly describing the history of the emergence of the concept, the author argues that it was originally understood too narrowly – only as a function of ensuring the stable functioning of the state apparatus. This is also how it is understood today. Meanwhile, even if the state apparatus is formally operating legally, this does not always mean that its operation is consistent with constitutional principles and values. The constitution is not simply an act of supreme legal force. It is imbued with constitutionalism, which boils down to the idea and practice of limiting power for the sake of the value of human dignity. In its turn, constitutionalism is secured by a number of principles and values, including pluralism. However, constitutionalism can also suffer from pluralism. The article speaks of two threats on this side: first, large-scale inter-party conflicts (both direct and “disguised” as conflicts between state bodies) and, second, the possibility of a political force aligned against constitutionalism gaining state power. Consequently, guaranteeing the constitution consists not only of ensuring the normal functioning of the institutions of public power, but also of protecting and defending the constitutional principles and values, which together represent constitutionalism. However, practice shows that presidents either neglect this “second part” or use the appeal to constitutional values to strengthen their own power. In the author’s view, this is due to the fallacy of the very model of a mixed (semi-presidential) republic, within which the concept of “guarantor of the constitution” emerged. The institution of the president in this model is positioned by doctrine as politically neutral and therefore above all branches of power. However, the neutrality of the president of a mixed republic is illusory, for he is a more or less active political actor and therefore incapable of fulfilling the role of guarantor of the constitution. The false presumption of presidential neutrality not only makes the institution of the guarantor ineffective, but also contributes to the authoritarian trend of the president.

METAMORPHOSIS OF THE RUSSIAN CONSTITUTION

CONSTITUTIONAL RIGHTS AND FREEDOMS IN THE THIRD RUSSIAN POST-SOVIET REPUBLIC

Irina Alebastrova

The main idea of the article is that most provisions of the amendment to the Russian Constitution, which was adopted in 2020, affect constitutional human rights in one way or another and limit them. The changes made by the amendment to the configuration of the state powers and the legal status of a man and the citizen, are so significant that the model of the Russian state organization installed after its introduction can be considered the third post-Soviet republic. We believe that the first post-Soviet republic was existing during the 90-s years of the XX century in our country. It was characterized by a significant commitment to the European standards. The second one covered the first two decades of the XXI century. It was characterized by the struggle of two inertial mechanisms: the new democratic one, which was launched in the period of the first republic, and the old dictatorial one, which did not cease to operate, and it has grown stronger while the new Russian political leadership was relying on it. The period of the third post-Soviet Russian Republic, which began together with the amendment-2020 to the Constitution, is characterized by the prevalence of elements of the dictatorial model of governing in our country. Within the context of the role of the amendment provisions in insuring of human rights, they can be divided into three categories: direct and indirect restrictions of human rights and neutral ones for their quantity and quality but intended for diverting attention from the rights restrictions imposed by the two first groups of the amendment provisions. Restrictions imposed by the amendment affect personal and political rights while false guaranties cover social rights. The direct restrictions on human rights mean impositions of prohibitions or duties on a person by the amendment. Indirect ones include the weakening the mechanism of checks and balances by means of strengthening the President power. The author concludes that the direct and indirect restrictions on personal and political rights do not pass the proportionality test, established by Russian Constitution (Part 3 of Article 55), being illegal for this reason.

HISTORY AND SOCIOLOGY OF LAW

THE SOCIAL HISTORY OF LAW AS A FACTOR OF THE RULE OF LAW

Dmitriy Poldnikov, Yuriy Fogelson

The rule of law, understood as ideology and legal rules, is believed to be a competitive advantage of Western civilization, supporting its sustainable development. Yet it can also be viewed as a social norm of citizens who respect the law and follow its commands. How does this social norm emerge in different societies? This question must be answered through the social history of the law in Western and non-Western societies from a comparative perspective. This paper outlines the main features of comparative socio-legal history and tests it on some significant historical examples. In the first part of the article, the authors propose a functional classification of legal systems into three ideal Weberian types–the law of judges, learned law, and the law of the authorities. It allows us to consider the origin of the social norm of the rule of law. In the second part of the article, the authors trace the transition from the ideal types to natural legal systems and identify the factors that determine the stability of the social norm of the rule of law where it originated. In the final part of the article, the authors conclude that, first, the social norm of the rule of law emerged in the societies where the law had been treated either as a means of resolving disputes (the law of judges) or as the rules of fair, correct conduct (learned law), for example, the Roman Republic, medieval England, continental Europe, and the Ottoman Empire. Secondly, the stability of the social norm of the rule of law seems to be explained by a “triangle” of factors, namely: 1) political competition where all participants understand the inevitability of compromise on the basis of the law, 2) law which is suitable for finding a compromise due to its internal merits, 3) a professional community of jurists who develop and apply law independently of the administration. Such a triangle is possible in any society where the law of judges or learned law prevails and where the majority of participants in the political process are ready to compromise based on the current law.

HUMAN RIGHTS AND FREEDOMS

THE CONSTITUTIONAL HUMAN RIGHTS IN UZBEKISTAN: POSITIVISM, TRADITIONALISM, AND A CAUTIOUS SHIFT TOWARDS INTERNATIONAL LEGAL STANDARDS

Aziz Ismatov

Until recently, unofficial interpretations of the situation with human rights had remained as an unspoken taboo in Uzbekistan, whereas foreign observers harshly criticized the country, pointing out systematic violations and restrictions of rights by the state. Indeed, not many could predict that the new President Shavkat Mirziyoev, who was elected in 2016, would initiate steps towards improving the human rights situation and, simultaneously, face specific challenges. The 1992 Constitution was developed within the complex transition process from socialism to market economy. This Constitution devotes an entire chapter to human and citizens’ rights. Initially, some authors expected that the Constitution would integrate rights in the context of natural-legal ideas. However, Uzbekistan has largely preserved and strengthened the positivist approach towards constitutional rights, designating the state to grant and limit those rights. The paradox of this situation is that Uzbekistan’s tendencies conflict with the general trends of the post-socialist constitutionalism since the country practically did not change constitutional provisions’ evolutionary development. On the other hand, in the post-socialist Eastern European countries and some former USSR republics, the collapse of socialism led to a constitutional revolution. The author applies historical analysis and cognitive constitutionalism methods to explain a paradox of impossibility to root natural-legal ideas within the (1) deeply-rooted Soviet positivism and (2) revived pre-Soviet traditionalism. On the other hand, the historical 1992 Constitution preparatory process, guided by the special Working group and headed by Islam Karimov, and the theory of human rights in Uzbekistan inherited a strong influence from the doctrine of the Soviet constitutionalism; its positivism, dogmatism and normativism. On the one hand, the author focuses on the impact of traditionalism revived after 1991 in national customs, behavioural attitudes, or social values; and paternalism that had transformed into a “super-presidentialism”, which widely continued a principle of the state’s priority above the individual. In conclusion, the author points to the existing legal imperfections of the constitutional text, and offers approaches to shorten the gap between the supporters of positivism in the 1992 Constitution and the natural right theory’s followers.

JUDICIAL ARGUMENTATION

JANUS TURNS OUT TO BE ONE-FACED: THE JUDGMENT OF THE RUSSIAN CONSTITUTIONAL COURT ON THE PERMISSIBILITY OF EXAMINATION OF JURORS IN THE LIGHT OF FOREIGN LAW

Aldar Chirninov

According to Article 56 of the Russian Code of Criminal Procedure, “a judge and a juror may not be examined as a witness about the circumstances of a criminal case which they have become aware of while participating in it”. The Russian Supreme Court has interpreted this rule as imposing a categorical prohibition to examine a juror even though the defense submits and tries to prove that jurors were not impartial due to the extraneous influence and unlawful threats that they confronted in a jury room. As a result, this approach, instead of ensuring the confidentiality of jury deliberations, has been rather used to preclude the discovery of procedural irregularities in reaching a verdict. In its judgment of 7 July 2020, the Russian Constitutional Court has softened this unreasonable restriction by ruling that jurors’ witness immunity is not absolute and appellate courts must use their testimony to establish facts relating to alleged attempts to place unlawful pressure on a jury by undermining the secrecy of jury deliberations. Based on a case file, including the petition that the author of this article drafted and filed to the Russian Constitutional Court, the article reconstructs the arguments invoked by the parties in the course of constitutional proceedings and assesses the approach taken by the Russian Constitutional Court to decide the case. In particular, the court has allowed examining jurors, but only with their consent. Having studied the experience of the countries where a jury system has been present for a long time, namely the United States, Australia, New Zealand, Sri Lanka, and Myanmar, the author argues that a post-trial examination of jurors is a recognized way to ensure the right of a defendant to an impartial jury. Among other things, the foreign jurisdictions obligate a juror to inform a judge about attempts to unlawfully influence a jury, empowers a judge to determine if there are sufficient grounds for summoning jurors as witnesses, and sets standards of examination. However, none of these legal orders requires that a juror give consent for examination. Therefore, the article concludes that the integrity of jurors in Russia should be protected not by enabling them to testify before an appellate court at their discretion but by strengthening their legal immunity, which in turn will strike an optimal balance between competing constitutional values.

BUILDING POLITICAL PARTIES

LEGAL RESTRICTIONS ON THE RIGHT OF ASSOCIATION IN POLITICAL PARTIES AND THEIR INTERPRETATION IN COURT DECISIONS: COMPARATIVE LEGAL ANALYSIS

Andrey Vershinin

The article examines the issue of exercising the freedom of association in political parties in Russia in a comparative analysis with the leading democratic countries of the world. Modern democracies cannot be imagined without political parties, which are the representors of the interests of their voters in legislative bodies and local government bodies. The development of civil society and the entire political system in the country depends on how the freedom of association in political parties and the access of parties to participate in elections is realized. The development of legislation on political parties in the Russian Federation proceeded unevenly. In the first years after the adoption of the Constitution the legislative body did not introduce strict requirements for parties. The adoption of a special federal law on political parties in 2001 became a turning point in the development of the party system. The author identifies two large blocks of restrictions on the creation of parties. The first is legislative restrictions, the second is the restrictions that arise from the unfair activities of legislative and law enforcement agencies. In this work, legislative restrictions are compared with restrictions in other democracies, as well as based on legal positions developed by the European Court of Human Rights. The author comes to the opinion that some restrictions on the creation of parties are not necessary now, in the meantime they significantly narrow the possibilities of party creation and political competition. First, we are talking about a ban on the creation of regional parties. The Constitutional Court in its legal positions indicated that this restriction is temporary and will be lifted over time. Within the framework of this work, the author will give suggestions on changing the approach to the creation of political parties in Russia, which should affect the emergence of new strong parties at different levels of public authority. The author believes that a system of “controlled multiparty system” has developed in Russia, which is implemented both in changing the legislation on political parties based on the interests of the “party in power” and the practice of the registration body, which prevents the formation of new parties claiming to redistribute the existing distribution of forces. Based on the analysis of the legislation on political parties, law enforcement practice, decisions of the Constitutional Court of the Russian Federation, the ECHR and the legislation of foreign countries, the author proposes approaches to reforming the existing party system, which include small cosmetic changes and large-scale changes in approaches to the creation of parties.

POINT OF VIEW

CONSTITUTIONALIZATION OF THE PRINCIPLE OF RESPECT FOR ELDERS: THE EXPERIENCE OF THE 2020 CONSTITUTIONAL AMENDMENTS, THEIR CONTENT AND IMPLEMENTATION PROBLEMS

Pavel Astafichev

The article is devoted to the study of a number of problems related to the regulation and implementation of the principle of respect for elders, which is new for the constitutional law of Russia. The author substantiates the position that the problem of constitutionalization of the principle of respect for elders should be posed wider, at least outside the boundaries of strictly educational activities and in the broader context of the paradigm of the hierarchy of seniority in the system of fundamental principles of constitutionalism. The principle of “respect for elders” is opposed by the stable constitutional practice of Russia and foreign countries guaranteeing at the constitutional level, on the one hand, the rights of parents (mothers, fathers) and the elderly, and on the other, children and youth. Parents and the elderly do indeed enjoy the constitutional right to special respect as a kind of “elder”, but this does not give grounds for a broad interpretation of the constitutional status of all other members of society. The author proves that, in fact, the constitutional imperative of “respect for elders” is an attempt, albeit relatively “soft” in the legal sense (without legal consequences and in the absence of a clear definition of the rights and obligations of subjects of legal relations), to introduce into the life of a free civil society a kind of disciplinary-subordination beginning in relationships between older and younger people. Moving up the age ladder supposedly should give a certain increase in subjective rights. However, to what extent is this permissible in a constitutional state and a democratic society? And does this really correspond to the prevailing socio-cultural stereotypes of social behavior of the modern generation of Russians? According to the author, in the construction of “respect for elders”, an indication of the sign of seniority is of key importance. The term “respect” is not entirely accurate, since without significant distortion of the meaning it could be replaced with the words “special recognition”, “subordination”, “emphasized correct behavior”, etc. By virtue of Article 21 of the Constitution of the Russian Federation, all people are obliged to respect each other as people, they are legally stimulated in equal measure to recognize the value of their human dignity.

IN THE RUSSIAN CONSTITUTIONAL COURT

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT JUDGMENTS NOS. 4‑P – 9-P • 2021

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT RULINGS NOS. 180-O-R, 182-O, 183-O, 186-O, 378-O • 2021