Available in Russian
CONTENTS
HUMAN RIGHTS: PROBLEMS OF EVOLUTION
CAN HUMAN RIGHTS BECOME OBSOLETE?
Human rights have been codified over the centuries. They cannot be separated from the historical context in which they were created. Discussions in the 21st century, for example about the rights of animals or the rights of nature, seem to shake the fundamental convictions on which human rights are based and may suggest that human rights are outdated. But while uncertainties and innovative approaches cannot be ignored, it is not possible to confirm a complete change in the basic perceptions underlying human rights codifications and treaties. While the historical context is important, examples such as the Magna Carta show that abstract ideas can be unearthed and given an abstract, nontemporal meaning. This is also true of modern codifications, where some provisions remain dead letter, while others shape society. Another factor that can create a distance between the human rights of the past and the present is language. Attempts to rewrite the Universal Declaration of Human Rights and adapt it to a gender- and hierarchy-sensitive understanding have not proved fruitful; it is better to accept the compromises of the time in their original form. Ultimately, the longevity of human rights may be a result of their adaptability, as exemplified by the living instrument doctrine of the European Court of Human Rights. It is thus possible to pour “new wine” into “old wineskins” and make human rights work, despite the paradoxical interdependence between the timeless and the time-bound.
THEORY OF CONSTITUTIONAL LAW
HUMAN DIGNITY AS THE BASIS AND AS THE NORM OF CONSTITUTIONAL LAW IN GERMANY
Since the end of World War II, both international and domestic protection of human rights has been largely based on the notion of dignity. Germany was among the first countries to include dignity clause in the text of the Constitution, defining it as one of the foundations of legal order and prohibiting any changes thereto. On this basis, the Federal Constitutional Court has been consistently developing the traditions of classical German philosophy (primarily Kant’s ideas) and Western individualism, organically supplemented by principles of the rule of law. This creates an image of a person who is uniquely individual, but connected to society. The constitutional discourse of dignity contains teleological, axiological, deontological and human rights aspects. The author examines the influence of modern concepts of human dignity on the emergence of new subjective rights, understanding and application of constitutional provisions, inter alia regarding emergence and termination of the protection of individual self-development, and relationship between criminal prohibitions and the sphere of autonomy. The open notion of dignity allows for its evolutive interpretation, filling it with various contents in the context of scientific progress and socio-cultural changes, but excludes external standardization. Against this background, a discussion has unfolded in Germany about the absolute and relative nature of the constitutional norm of dignity, its definition as rule or principle; yet, the absolute value of person and special significance of their self-determination in matters not affecting the autonomy of another subject remain unchanged. The author reads the norm of dignity as containing the right of a person to demand that the state does not intrude into inviolable part of their autonomy, does not destroy the boundaries of their personal life, and does not exert influence incompatible with their status as a person, depriving them of this status, or denying respect to it. In such a model, the principle of proportionality assists in the weighing of not the dignity itself but of the influence on it, which is permissible if the latter does not violate the inviolability of dignity, and does not contradict it.
CONSTITUTIONAL MEMOIRS
THEORY AND JURISPRUDENCE OF THE GERMAN FEDERAL CONSTITUTIONAL COURT: AT THE ORIGINS OF THE RUSSIAN JUDICIAL CONSTITUTIONAL REVIEW
On the occasion of the 75th anniversary the Federal Constitutional Court of Germany, this article offers reflections on the significance of German legal approaches for other legal systems. The author, drawing on her own experience of communication with German legal scholars and judges, notes the special role of the German model of judicial review during the establishment of the Constitutional Court of the Russian Federation, highlighting the similarity of its essential functions and procedures with the Federal Constitutional Court of Germany. It is emphasized that for a long time — starting from the development of the first laws on the Constitutional Court and up to the period of counter-reform in 2008–2010 — the experience and positions of the Federal Constitutional Court of Germany were given special attention in both constitutional research and rule-making. The article discusses the unique experience of the expert assessment provided by the judges of the Federal Constitutional Court of Germany on the draft federal constitutional law on the Constitutional Court of the Russian Federation. A significant part of the article is devoted to the formation and development of Russian constitutional justice, many functions of which, enshrined normatively, were initially interpreted in the practice of the Constitutional Court, similar to the German experience, and over time were adopted in the text of norms. This made it possible to implement some useful ideas from the German experience in Russian constitutional justice. Examples include the Constitutional Court’s practice regarding the range of subjects authorized to collectively file a constitutional complaint, the enshrinement in constitutional legislation of the binding legal force and legal consequences of the rulings of the Constitutional Court, as well as the requirements for subsidiary specific normative review on requests from ordinary courts. The comparison of constitutionally conditioned approaches of the two countries to the application of the norms of international human rights law also allows us to conclude that there are no grounds in the practice of constitutional justice to abandon international obligations to protect rights and freedoms. The final part of the article notes the importance of legal studies by German authors, devoted to the development of Russian constitutional justice, including those whose works were written for the Russian-speaking audience and published only in Russian. Summarizing, the author emphasizes the commonality of ideas underlying German and Russian constitutional justice — the supreme value of the individual and the obligation of the state to ensure respect for human dignity, as well as the protection of rights and freedoms, recalling that there is objectively no alternative to these supreme constitutional values.
DIGITAL ENVIRONMENT AND ELECTION RIGHTS
ENSURING AND PROTECTING THE ACTIVE VOTING RIGHTS IN ELECTRONIC VOTING PROCEDURES
Experience of various constitutional democracies that have implemented electronic voting in elections and referendums demonstrates the significant difficulty of eliminating systemic shortcomings in this form of voting, especially those relating to equal suffrage, ballot secrecy, and the transparency and openness of elections. In recent years, the Russian Federation has actively piloted diverse models of electronic voting, both in-person and remote via the Internet, utilising federal and regional state information systems. The procedural variations in electronic voting across different constituent entities of the Federation, as permitted by the Central Election Commission and regional electoral bodies through delegated regulatory authority, have exacerbated concerns over the equality of electoral rights. Moreover, the assignment of quasi-legislative functions to election commissions, specifically in regulating digital electoral procedures, undermines the consistency and coherence needed to ensure robust legal guarantees in this domain. The case of Moscow, where electronic voting has been elevated from a supplementary to a primary method of casting ballots, along with the regulation of eligibility criteria for digital voters and procedures for opting out of electronic voting, merits critical analysis. Public oversight of electronic voting remains particularly challenging, further complicated by the lack of transparency and accessibility in reporting results. This is evidenced by final protocols that fail to adequately reflect the specificities of digital participation. Additionally, the right to legal protection of electoral rights in the digital sphere is hindered by the judiciary’s restrictive interpretation of the scope of review in such cases. Given the persistent underdevelopment of legal safeguards for the active voting rights in electronic voting, the wholesale transition to this form of voting as the primary mechanism for expressing the electorate’s will cannot, at this stage, be deemed consistent with the constitutional principles of electoral law.
EQUALITY AND CONSTITUTIONAL JUSTICE
CONSTITUTIONAL GENDER JUSTICE IN CENTRAL AND EASTERN EUROPE? NOTES ON THE IMPLEMENTATION OF THE PRINCIPLE OF SUBSTANTIVE EQUALITY BY CONSTITUTIONAL COURTS
This article examines the phenomenon of constitutional injustice through the lens of the absence of a substantive gender equality perspective in constitutional courts, focusing on Central and Eastern European (CEE) countries. While rooted in regional analysis, the discussion addresses a broader global issue: the structural barriers women face in accessing constitutional justice. These include formal, doctrinal, and interpretative constraints that inhibit courts from engaging meaningfully with gender-based claims. The article traces this problem to the socialist-era conception of gender equality, which emphasized formal rights and protective measures while maintaining traditional gender roles. This legacy entrenched a culture of legal formalism and positivism that continues to dominate constitutional interpretation in the region, impeding the adoption of more inclusive and socially responsive approaches. The article identifies three dimensions of constitutional gender injustice: limited access to constitutional courts, doctrinal limitations in reviewing equality claims, and judicial avoidance in balancing competing rights and values. To address these challenges, the article tests Sandra Fredman’s model of substantive equality, comprising disadvantage, recognition, voice and participation, and accommodation of difference, against the actual practices of constitutional courts in the region. It argues that applying this model can guide courts toward more inclusive jurisprudence and help embed substantive gender equality into constitutional review.
CONSTITUTIONAL COMPARATIVE STUDIES
CONSTITUTIONAL IDENTITY OF THE VISEGRAD GROUP COUNTRIES AND RUSSIA: A COMPARATIVE LEGAL STUDY
The article examines the peculiarities of the formation of the concept of constitutional identity in the countries of Visegrad Group and Russia. The thesis is substantiated that the genesis of identity in these countries was mainly related to external causes. The development of the doctrine was aimed at softening a consistent program of integration of the European Union legal space, stabilizing the political systems of the member states in the context of changing legal reality. In this regard, additional arguments were identified in favor of the priority of the national constitution and the rejection of the unconditional supremacy of EU law. The analysis of the factors that had a significant impact on the formation of doctrines of constitutional identity in the Visegrad Group countries is carried out. The article argues that, despite the differences in wording, the constitutional courts of the Visegrad Group countries apply similar approaches to defining and identifying constitutional identity. The uniqueness of the judicial doctrines of Poland and Hungary lies in the combination of national and constitutional identity, including intangible aspects related to national identity. Such a union of two identities is atypical for Western European countries (Germany and Italy). The definitions of constitutional identity in the Czech Republic, Slovakia and Russia are more strict than in Hungary and Poland. A distinctive feature of the judicial doctrines of the reviewed countries is their protective orientation, emphasis on the supremacy of national constitutions and sovereignty, as well as a special approach to the content of sources of constitutional identity. The implementation of the “internal” function of constitutional identity is either poorly emphasized (Czech Republic and Slovakia) or completely absent (Poland, Hungary, Russia). In this regard, all the countries under consideration have significant potential for futher development of the doctrine. All these countries are united by a firm position on the recognition of the absolute primacy of national constitutions. Accordingly, the issuance of legal acts or the adoption of decisions that contradict the constitution is unacceptable. The transfer of sovereign powers to review and amend any provisions of the constitution is categorically excluded. In the absence of a cooperative dialogue between jurisdictions, these states are ready for dialogue only if their cultural and historical specifics and national identity are taken into account. The article also substantiates the conclusion that studying the experience of the Visegrad Group countries can be useful for Russia. It allows us to identify common features inherent in the constitutional identities of these states.
ECONOMIC CONSTITUTION
ARBITRABILITY OF TAX DISPUTES IN KYRGYZSTAN: UTILIZATION OF ALTERNATIVE FORM OF JUSTICE WITHIN THE CONTEXT OF PUBLIC LAW RELATIONS
This article examines the appropriateness of employing private justice mechanisms to resolve disputes arising from public legal relations, using tax arbitration in the Kyrgyz Republic as an example. Tax arbitration was introduced in Kyrgyzstan in January 2023 following the adoption of the new Tax Code. The article analyzes the key features of tax arbitration in Kyrgyzstan: disputes over appeals of tax authorities’ decisions by concerning the calculation and payment of taxes, as well as the collection of tax debts, have been reclassified as civil law disputes and declared arbitrable; taxpayers are given the choice to file claims either in a competent state court under administrative procedure rules or in arbitration; the consent of the tax authority to arbitration is presumed; disputes are resolved by a panel of three arbitrators. The article explores the risks and limitations of privatizing the function of adjudication through the lens of the main stakeholders in tax disputes: the state, the arbitral institutions, and the taxpayer. It draws parallels with similar legislative initiatives in Portugal and Georgia. Special attention is given to the critique of attempts to reclassify public tax disputes as private civil matters, circumventing constitutional limitations and distorting the legal nature of tax relations. The author argues that such a reform disregards the outcomes and principles of administrative justice reform and threatens to destabilize both the private justice system and administrative adjudication. Key sectoral concerns raised in the professional community regarding the implementation of tax arbitration include the use of presumed consent by the tax authority to arbitration-comparable to the concept of an open offer by the state in investment arbitration; the permissibility of settlement agreements in tax arbitration; and the determination of the party responsible for paying arbitral fees in tax disputes. By justifying the reform as a solution to the crisis of the state judiciary, the Kyrgyz legislators have deviated from the classical principles of arbitration-party autonomy, dispositiveness, and the consensual nature of proceedings. In the absence of a clear doctrinal foundation and adequate mechanisms for public oversight, the privatization of public disputes poses risks of institutional erosion, including the weakening of judicial sovereignty, the loss of transparency in tax governance, and the potential transfer of corrupt practices into the arbitral sphere. As such, the proposed arbitration model not only fails to strengthen the arbitral system but may also undermine its long-term stability and legitimacy.
CONSTITUTIONAL ARGUMENTATION
THE DEATH PENALTY IN RUSSIA THROUGH THE LENS OF THE THEORIES OF ORIGINALISM AND LIVING CONSTITUTION
Among Russian judges and legal scholars, the theory of the “living constitution”, which holds that the meaning of constitutional norms is determined by the contemporary context of their application, is considered self-evident. At one time, it became the dominant trend in American jurisprudence and spread to other legal systems as well. However, it is precisely in American law that this approach has recently come under serious criticism, resulting in an overruling of the long-standing practice of the U.S. Supreme Court regarding women’s right to abortion (a right that is now denied by the court). A crucial role in this process was played by the appointment of new judges during Donald Trump’s first presidency (2017–2021), who adhere to an alternative approach to interpretation, known as originalism. Originalist judges do not consider it possible to change the meaning of constitutional norms and believe that their true meaning is the one that was inherent to them originally, hence the need for historical knowledge that would help lawyers better understand the context in which the constitution was adopted. At first glance, such attention to history connects originalism with the historical school of law in continental jurisprudence. The article raises the question of to what extent this methodology of legal reasoning can be applied in Russian realities. To answer this question, it is necessary to assess, firstly, the effectiveness of the tools used by originalists, and secondly, their normative validity. According to the author, the materials of the Constitutional Commission and the Constitutional Conference represent a valuable historical source that allows one in some cases, for example, regarding the constitutionality of the death penalty, to establish the original meaning of the 1993 Constitution or at least the intent of its authors with a high degree of accuracy. Still, the justification for applying this methodology of interpretation is highly questionable, as it concerns human rights (in this case, the right to life). By their nature, as understood also by the Constitution’s authors, these are natural rights in the sense that they are objectively inherent to a person by virtue of being human, so they cannot be regarded as just another positive legal phenomenon akin to the rules governing the distribution of powers between state authorities or the like. As a result, traditional arguments in favor of originalism, which mainly appeal to the positive establishment of legal norms, do not hold up, or at least have less force in this context.