CCR № 2 (147) 2022

Price 1100 Rub.

CONTENTS

CONSTITUTIONAL WATCH

FEBRUARY – MARCH • 2022

Albania, Ecuador, Italy, Malta, Russia, South Korea, Switzerland

LAW AND BIOETHICS

CONSTITUTIONAL BIOJURISPRUDENCE AND PROMOTING BIOETHICAL WELLBEING (PART 1)

Igor Kravets

The article examines theoretical, philosophical, constitutional, and legal, some technological foundations for the development of constitutional biojurisprudence; scientific approaches to understanding the relationship between constitutionalism, biojurisprudence, human rights, human dignity in the context of the formation of constitutional biojurisprudence are analyzed. Constitutional biojurisprudence is a new meta-discipline and meta-branch of knowledge that arises as a result of the co-evolutionary development of prescriptive jurisprudence, human rights in the field of new technologies, bioethics and biomedicine. The article analyzes the scientific, legal, bioethical and important technological aspects of the formation and development prospects of constitutional biojurisprudence; the concept of “bioethical well-being” is proposed as a subject of philosophical and legal understanding, constitutional and legislative regulation, philosophical and theoretical, legal and medical approaches to understanding human dignity and dignity of patients in the context of protecting the health of citizens, legal sociology of biomedicine are revealed; sociological-legal and medical-social problems of using the principle of priority of respect for the dignity of the patient in the provision of medical care are identified, measures are proposed to improve constitutional legislation and legislation in the field of public health. The author uses the discursive approach and critical rationalism in legal research, methods of dialectics, legal hermeneutics, and constitutional and legal engineering, methods of comparative analysis of constitutional and philosophical ideas, doctrines of human dignity, biolaw and biojurisprudence, medical and other biotechnologies in the field of healthcare, human reproduction and biomedicine. Constitutional biojurisprudence is an integrative concept, it is formed under the influence of the ideological baggage of modern scientists, the norms of international soft biolaw, global and philosophical bioethics and medical ethics. It ensures the integration of knowledge and values of constitutionalism, human rights, the achievements of the life sciences, especially medicine and biology, modern technologies and acts as a nuclear normative and bioethical potential for the development of all biojurisprudence. The conclusions are: the legal consolidation of two principles 1) the priority of respect and protection of the dignity of the patient in the provision of medical care, 2) the priority achievement of bioethical well-being in the field of protecting the health of citizens creates a legal basis for the promising constitutionalization of biojurisprudence, for the formation of a discourse of the justification of the institutions of bioethical well-being and dignity of patients.

RIGHTS AND FREEDOMS IN A NEW REALITY

ON THE QUESTION OF THE CONSTITUTIONALITY OF UNIVERSAL MANDATORY VACCINATION AGAINST COVID-19: AN ANALYSIS FROM THE PERSPECTIVE OF GERMAN LAW

Alexander Blankenagel

Gradually, Germany is moving towards the introduction of universal mandatory vaccination against COVID-19. The expected adoption of this measure causes numerous acute discussions in society. Although in April 2022 the Bundestag rejected a bill on the introduction of such a duty, this decision can be changed in the case if the epidemiological situation gets worse. In this article, the presented positions are documented in a concise form. The arguments for the measure are well known to our reader and generally coincide with the position of the Russian authorities. The main arguments against this measure are the low effectiveness of existing vaccines that poorly protect against infection (especially after the appearance of the Omicron variant), as well as the possibility of adverse reactions, including deaths. Although the total number of deaths possibly associated with the use of COVID-19 vaccines is relatively small, but in comparison with other, “classic” vaccines, the mortality rate is much higher. The article analyzes in detail the situation with empirical data on the progress of vaccination. It follows from this analysis that there are indices of purposeful manipulation, in particular, an underestimation of the threat level of adverse reactions. The problem of compulsory vaccination is considered separately. In Germany, there are about 10% of citizens (up to 9 million people) who refuse vaccination for fundamental reasons. The use of physical coercion against such a large number of “refuseniks” is considered as unlikely. Taking into account the fact that for the formation of collective immunity, the proportion of 85% of the population is called as sufficient, which is almost reached, there is also no need for this. The main effect of existing vaccines is exhausted in facilitating the course of coronavirus disease. The author calls this “anticipatory therapy”. But for therapy, that is, the treatment of people who are already ill, there are drugs directly intended for this (medicines). The advantage of medicines is that they are applied only to sick people, and not to the entire population, which is a more gentle way to solve the problem, reducing the drug burden on the population. For the above reasons, the author comes to the conclusion that universal mandatory vaccination is an unconstitutional measure that violates the requirement of the principle of proportionality, according to which a means should be used that, other things being equal, leads to a minimum restriction of human rights and freedoms, in this case the right to physical and mental integrity, enshrined in Article 2, paragraph 2 of the Basic Law of Germany.

INDEPENDENCE OF THE JUDICIARY

A THEORETICAL DISCOURSE ON LIMITS OF THE “JUDICIAL INDEPENDENCE” CONCEPT IN SPANISH DOCTRINE: HISTORICAL OVERVIEW AND CURRENT STATUS

Francisco Javier Garrido Carrillo

When studying the Spanish Judges and Magistrates Statute, with Spanish judges and magistrates being analogous to the various levels of the Russian judicial system except that in the Spanish system judges and magistrates are equal, we note two remarkable and clear points: (1) the provisions concerning the exercise of judicial functions entrusted to judges in the administration of justice and (2) the conditions within which activities must be carried out – in other words, the principles of independence and impartiality. How do these concepts relate to each other? Should we distinguish between them only in theory or is it also important in the practice and law-making to guarantee the proper functioning of the judiciary? What is covered by these concepts? It is from the perspective of the requirements of independence in the administration of justice – as a guarantee for both the judges and the accused – that we are confronted with the primary need to define the limits of judicial independence concept as not only a basic element of the exercise of the judicial function but also useful in distinguishing it and relating it to the concepts of judicial power and judicial function. On the face of things, this means only a theoretical analysis, however it also has great importance for practical work. Independence encompasses different planes. On top of all of this, we must bear in mind that a judge is not only a person exercising the function of administration of justice but also a civil servant to whom certain guarantees are provided. And these also are of extreme importance in guaranteeing his independence. Therefore, our view on judicial independence should not only cover theoretical aspects but also his status as an employee. In this article the author attempts to separate judicial independence and impartiality and to consider the former not only as a general legal guarantee but also as a right of the individual occupying judicial office. The analysis is of a theoretical nature: the material offers a review of the main fundamental positions of Spanish procedural doctrine, an overview of decisions of the Spanish Constitutional Court, and a brief historical essay.

QUASI-JUDICIAL REMOVAL PROCEDURES OF JUDGES IN RUSSIA AND THE UNITED STATES OF AMERICA

Irina Kuznetsova

The article analyzes the Russian innovation of removal of a judge, based on legislation after entry into force of a Federal Law amending the Constitution of the Russian Federation and compares it with the process of impeachment, one long-known in countries of the Anglo-American legal system, and used in the United States in particular. The article is aimed at identifying the commonalities, differences, and priorities of judicial removal procedures in Russia and the U.S.A. The author conducts to that end a comparative legal analysis of all stages of removal, as well as of the activities of the subjects of judicial removal proceedings in the United States and Russia, starting with the initiation of proceedings and up to the termination of the judge’s authority. In the author’s view, an American judge’s impeachment is a quasi-judicial procedure, which deserves attention because of its greater guarantee of judicial independence and its protection against persecution and arbitrariness leading to conviction and removal from office. This is facilitated by, first, mandatory participation of a body of the Judicial Community, the Judicial Conference; second, the participation of Congress in impeachment decision making, so as to guarantee the independence of the procedure, including its independence from the executive branch; thirdly, in order to ensure the independence of the judiciary in the American impeachment model, the principles of transparency, openness to the public and adversarialness are its basic elements; and fourthly, decisions advancing the impeachment of a judge are taken collegially at all stages of the procedure.

CONSTITUTIONAL METAMORPHOSIS

CONSTITUTIONAL AMENDMENTS ON THE ROLE OF INTERNATIONAL OBLIGATIONS IN THE LEGAL SYSTEM OF RUSSIA: FORWARD TOWARDS THE PAST?

Sergey Marochkin

The article is devoted to assessing the significance for the legal system of the Russian Federation of constitutional amendments relating to international law which are of substantial importance among the numerous amendments introduced by the Law of 2020. They relate to a very specific issue of the possibility of refusing to comply with decisions of international jurisdictional bodies, but in fact reflect a fundamental change in the country’s attitude to its obligations in international community and the role for it of international law in general. The origins of such a turn are shown. It was set up in 2015 by the judgement of the Constitutional Court of the Russian Federation (hereinafter referred to as the RCC) and by the federal constitutional law. Now they are enshrined at the highest level in the Constitution. The author argues that the widespread opinions and statements about the similar policy of foreign countries referring to their constitutions and judicial practice do not fully reflect the actual situation. Russia is essentially the only country with such a position regarding the acts of international bodies. The real meaning of the amendments is not to ensure the supremacy of the Constitution, which was not necessary from a legal point of view. They are to entrench barriers to “inconvenient” decisions of international bodies. Failure to comply with them entails a violation of obligations under international law.

RUSSIA: LAW AND POLITICS

THREE SOURCES OF DYNAMISM OF RUSSIA’S CONSTITUTIONAL LAW: THE CONSTITUTIONAL COURT IN POLITICAL PROCESS

Alexei Trochev

Having reached the age of 30, the Russian Constitutional Court finds itself in a dynamic situation. Dynamic constitutional law, Russian-style, is a product of the ambitions of both a powerful head of state as a patron-in-chief and his clients, who gain powers, discretion and privileges in exchange for displaying loyalty to their patron. The Russian Constitutional Court (RCC) has been a central, pragmatic yet ambitious player that expanded its powers and privileges at the expense of judicial autonomy in this dynamic exchange of making, remaking and unmaking constitutional rules. In this article I explore the multiple roles played by the RCC in handling three sources of this dynamic exchange: the instrumentalization of constitutional law by the rulers; legal dualism and the adaptation of the RCC to the whims of Russia’s political masters; and the demand for constitutional justice from ordinary Russians. While the first two sources — the instrumentalization of law by the powerful and the creative flexibility of official law-enforcers — are nothing new to Russia-watchers, the third one could be clearly attributed to the operation of the Russian Constitutional Court. Many RCC decisions in politically important cases are products of instrumentalization of constitutional review by the rulers and their clients. For all the threats to its existence and readiness of the regime to recast the court, the RCC has so far been able to persuade Vladimir Putin of the utility of a separate constitutional review tribunal for building a modern personalist autocracy. The RCC has supported the Kremlin by supplying legal justifications for governance reforms in advance of their adoption and by mediating between the Kremlin and the European Court of Human Rights, a highly popular tribunal among Russians. Still, some RCC judges believe that their tribunal can make its own — autonomous from the interests of the rulers — contribution to the dynamism of Russian constitutional law. The continuation of dissenting opinions by RCC judges up until 2021 indicated that political leaders accepted that the credibility of RCC judges (and the value of their support) depended upon their appearing autonomous as individual judges. This appearance clearly has been playing a role in generating and cultivating the demand for constitutional justice among ordinary Russians, who never before had a chance to sue their state for violations of their basic rights.

SCHOLA

THE INSTITUTION OF OMBUDSMAN IN THE UNITED KINGDOM: FEATURES AND TENDENCIES OF ITS DEVELOPMENT

Vadim Gabrielov

This scientific article explores the features and tendencies of the development of the institution of ombudsman in the United Kingdom. The relevance of the issues this article deals with lies in the process of development of this institution in many countries, its transformation and evolution. Assessment of its effectiveness and its possible development requires studying the practices of the countries in which this institution has undergone considerable development but still continues to evolve. In this regard, the experience of the United Kingdom appears to be very valuable, as the institution of ombudsman in this country is an established and rapidly developing human rights protection mechanism. However, in Russian constitutional and legal science, a comprehensive analysis of the institution of ombudsman in the United Kingdom has not yet been conducted. One of the aims of this article is to fill this gap. This article focuses on the following types of ombudsman: Parliamentary Commissioner for Administration, Health Service Commissioner, Legal Ombudsman, Financial Ombudsman, Pensions Ombudsman, Housing Ombudsman and Furniture Ombudsman. The author analyses the Acts of Parliament, secondary legislation and acts of self-regulation which regulate the legal status and activity of these ombudsmen. Furthermore, the author analyses annual reports and accounts of the ombudsmen which allow conclusions to be drawn about the effectiveness of their activity. The author draws the conclusion, after studying the British model of the institution of ombudsman, that there is a trend in the UK to separate the institution of ombudsman from the UK Parliament. The UK Parliament has not resisted this tendency and has delegated its authority to other governmental bodies, agencies, and officials to regulate the status of the ombudsmen, leading to the tendency of implementing legal regulation of their activities through various levels of legislation. Besides, the institution of ombudsman in the UK is a popular and highly effective way of dispute resolution that allows the parties to reach agreement and avoid litigation. Ombudsmen often act as independent mediators and do not impose binding decisions on the parties unless the parties are unable to reach an agreement on the subject matter of the proceedings.

IN THE RUSSIAN CONSTITUTIONAL COURT

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT JUDGMENTS NOS. 1-P – 8-P • 2022

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT RULINGS NOS. 188-O, 191-O, 492-O, 497-O, 498-O-R • 2022