CCR № 3 (148) 2022

Price 1100 Rub.

CONTENTS

CONSTITUTIONAL WATCH

APRIL – MAY • 2022

Colombia, France, Germany, Hungary, Italy, Pakistan, South Africa, South Ossetia, Turkey, USA

LAW AND BIOETHICS

CONSTITUTIONAL BIOJURISPRUDENCE AND PROMOTING BIOETHICAL WELL-BEING (PART 2)

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.

LEGAL REASONING

SEARCHING FOR RELEVANT ARGUMENTS: THE STRUCTURE OF CONSTITUTIONAL ARGUMENTATION

Aldar Chirninov

Being a kind of evaluation activity, constitutional review requires proceeding with a set of tasks, starting from determining criteria for constitutionality, describing prescriptive properties of challenged legal norms, and ending with their comparison, which results in the complex nature of constitutional argumentation. Analyzing what elements the structure of constitutional argumentation consists of, the author demonstrates that a primary thesis of constitutional argumentation can be presented as a normative statement containing an indication of the circumstances in which a legal norm at issue is implemented, followed by a positive or negative judgment about its constitutionality. In doing so, a constitutional review organ may specify a primary thesis by expanding or narrowing the scope of judicial review and framing constitutionally significant circumstances in which a challenged legal norm is to be enforced (typical law enforcement situation). Since the structure of argumentation expresses the connection between premises and a thesis, the article explores the grounds on which certain statements are recognized as relevant to the unfolding discussion about the constitutionality of legal norms. In the author’s view, arguments can be identified as relevant if they strengthen constitutional normativity. At the constitutionally due level, this strengthening occurs through unleashing the regulatory potential of constitutional provisions, whereas, at the level of normatively present, constitutional normativity intensifies when a constitutional review organ accurately describes prescriptive properties of challenged legal norms and indicates ways to address their unconstitutionality. Taking into account how constitutional review is exercised, the author identifies three argumentation levels: prescriptive, where a court should set constitutional standards of lawmaking; descriptive, where a court gives an accurate description of prescriptive properties of challenged legal norms; evaluative, where legal norms at issue should be directly compared to constitutional provisions. Finally, the article examines argumentation schemes used to justify court rulings that diverge from a primary thesis on constitutionality. It is shown that these arguments do not per se affect the conclusion about the unconstitutionality of the challenged legal norms but only lead to the decision to temporarily keep struck down legal norms in force.

JUDICIAL POWER

NOT ONLY FRANCE: PRELIMINARY REVIEW OF THE CONSTITUTIONALITY OF LAWS AROUND THE WORLD

Irina Galyaeva

Preliminary review of the constitutionality of laws is one of the primary types of constitutional control of legislation. While it exists in many countries of the world, as to domestic doctrine, research about it is limited to a description of the French model of constitutional control. The purpose of this article is to describe this institution based on analyses of constitutions, legislation, the practice of constitutional control bodies, and the doctrines of countries in different parts of the world (Latin America, Europe, Africa, Asia). This article studies the experience only of specialized judicial bodies of constitutional control. It has been established that the most important aspects of analyses of this institution in various countries are the moment of application of preliminary control either “at the entry” or “at the exit”, including the relationship of preliminary control and the right of veto; who may seek this review; the features of this procedure (such as time limits for making a decision, the form of application for review, formation of the subject of verification); and the consequences of a decision of constitutionality or unconstitutionality, including its relationship to subsequent constitutional review. Thus, preliminary judicial control of the law is carried out, as a rule, from the moment the legislative process for a law begins and continues through enactment by the parliament and until signing or promulgation of the law, which is described as control “at the entry”. Between these time points, there may be a veto by the head of state, the relationship of which to preliminary control “at the exit” depends on whether a veto on constitutional grounds and a veto on political grounds are differentiated in a given country. Who may apply for preliminary constitutional control is limited, but regardless of the form of government, the most frequently permitted entities are the president and a group of parliamentarians. The most notable features of preliminary constitutional review as a whole are its predominantly written nature, the limited time limits for it, and the way courts evaluate the contested norms. At the same time, the consequences of decisions not only of unconstitutionality but also of constitutionality are important, since this decision may lead to the impossibility of exercising subsequent constitutional review of the same law.

JUDICIAL CONTROL OVER PRE-TRIAL PROCEEDINGS IN THE CRIMINAL PROCEDURE LEGISLATION OF GEORGIA

Alla Vereshchagina, Daria Kuman’kova

The relevance of the study is due to the need to find acceptable examples for Russia of the regulation of the institute of judicial control over pre-trial proceedings, the formulation of which in the current Criminal Procedure Code of Russia is not entirely successful. Russian researchers practically do not pay attention to the study of existing foreign experience. The purpose of the study is to identify the constructive elements of the normative model of judicial control over pre-trial proceedings in Georgia. To achieve the purpose of the study, the following tasks are formulated: to study the evolution of the institute of judicial control over pre-trial proceedings; to give a periodization of the development of the institute; to analyze the regulatory regulations and outline the architectonics of the institute of judicial control over pre-trial proceedings. The object of the study is the criminal procedure legislation of Georgia, the subject is the regulatory of the Georgian Institute of Judicial Control over Pre-trial Proceedings. The novelty of the results obtained is due to the subject of the study, which has so far remained out of the attention of Russian scientists. As a hypothesis, the assumption is formulated that the regulation of the institute of judicial control over pre-trial proceedings may contain provisions acceptable for reception. The research methodology includes the principles of scientific cognition – objectivity, pluralism, historicism and a set of methods: description, analysis, synthesis, historical-diachronic, formal-logical and comparative. There are two stages in the development of the institute of judicial control over pre-trial proceedings in Georgia: 1) establishment and consolidation of the main elements of the Institute (1998–2009) and 2) further development of the Institute (2010 – present). The design of the institute of judicial control over pre-trial proceedings in Georgia is similar to that in Russia, but has a number of differences. The main features of the regulation include the establishment of a special subject – a magistrate judge exercising judicial control over pre-trial proceedings; a wider range of areas of judicial control, including deposition of witnesses statements; deposition of testimony; consolidation of general and special provisions of the procedure for making a court decision on the application of procedural coercion measures and investigative actions and specific deadlines for resolving petitions and complaints.

LEGAL CLASSIC: FEDERALISM

NATIONAL AND INTERNATIONAL FEDERALISM IN THEORY AND PRACTICE

Carl Joachim Friedrich

This article systematically presents the theoretical views of Carl Joachim Friedrich on federalism. The author shifts the focus of federalist research from the search for a genuine federalism, unique to each constructed system of government, to the plane of political processes. Consistently analysing the theories of federalism by J.Althusius, Ch.L.Montesquieu, the founding fathers of the USA, A. de Tocqueville, T.Jefferson and J.C.Calhoun, P.-J.Proudhon, the author derives characteristics of federalism as a dynamic phenomenon. Contrasting it with another dynamic organisation – empire – C.J.Friedrich calls federalism “the governing power of consent”, and empire – “the governing power of coercion”. Such consent is achieved through a political process, one form of which is federalism. As a staunch supporter of constitutionalism, the author proceeds from the fact that no political process in a constitutional state can circumvent the constitution, hence, federalism can be considered as one of the forms of constitutionalism. In this sense, C.J.Friedrich is close to the authors of The Federalist and fully shares their idea that federalism is organically interconnected with the principle of separation of powers. On this basis, the author criticises the very idea of Soviet federalism and the state-building practice based on it, since Soviet constitutionalism is a screen behind which the monopoly of power by the Communist Party is concealed. C.J.Friedrich is less critical of federalism in countries freed from colonial dependence, linking its further fate to the development of constitutionalism. The author was helped to make cautiously optimistic prognoses by the connection he discovered between federalism and democracy: the process of federalism is only possible under social conditions in which common values and objectives are shared. Those values and goals may be different, but the author favours economic gain as the key factor that unites the subjects into a federation – regardless of whether it originated from the unification of previously independent states or from the federalisation of a unitary state. On the basis of the described theoretical and historical experience, C.J.Friedrich concludes that there should be three institutions at the heart of governing the federal process: a representative body, an executive body and a judicial body. Amongst other institutional regulators of the federalism process are noted the procedures for accepting a new subject of the federation, secession, citizenship and amendments to the federal constitution. The paper concludes with an analysis of the prospects of organising the federal process to unite divided nations (Germany, Korea), to strengthen regional integration alliances (in particular, the European Communities), as well as international organisations. In the latter case, C.J.Friedrich, like I.Kant, asks the question about the possibility of creating a world federation, but unlike the great philosopher comes to a more restrained answer: if such a federal formation is to be built, then not in the immediate historical perspective. At the same time, the author points to the great potential of the UN and expresses hope for its further development.

THE INSTITUTIONAL APPROACH TO FEDERALISM: C.J.FRIEDRICH’S THEORY OF FEDERALISM AND ITS SIGNIFICANCE IN THE CONTEMPORARY WORLD

Vadim Korol’kov

The article analyses C.J.Friedrich’s institutional theory of federalism in the context of his views on the state based on the synthesis of the European and American concepts of constitutionalism. The distinctive features of his institutional theory on the order of formation and development of federal systems are illustrated, as well as its importance for modern constitutional and political theory. Separately, from the standpoint of institutional theory analyzed the domestic federal system and the Eurasian Economic Union, identifying the problematic aspects of the work of their bodies and institutions, suggestions for improving the legal regulation to improve the effectiveness of the institutions of federalism.

PRAXIS

RUSSIAN CONSTITUTIONAL COURT IN 2021: REFORMED TO STAY THE SAME?

Olga Kryazhkova

The article summarizes the work of the Russian Constitutional Court in 2021. The author has been doing this systematically since 2018. The changes in the Federal constitutional law “On the Constitutional Court of the Russian Federation” and the Rules of the Constitutional Court are analyzed. The dynamics of key statistical indicators of the Court’s activity is considered: the number of appeals, the number of the most significant decisions (decrees, rulings on clarification of decrees and positive rulings), categories of cases, types of final conclusions in decrees, oral and written format of legal proceedings. The change in the composition of the Constitutional Court is recorded. It is concluded that the transformation of the status of the Court during the constitutional reform of 2020 has not yet had a fundamental impact on its activities. The dominant trends that characterize its appearance were formed earlier. The exception is the rejection of the institution of amicus curiae, which has become a truly new line in the interaction between the Constitutional Court and society.

IN THE RUSSIAN CONSTITUTIONAL COURT

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT JUDGMENTS NOS. 9-P – 15-P • 2022

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT RULINGS NOS. 821-O, 824-O, 1136-O, 1137-O • 2022