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CONTENTS
TERRITORIAL DESIGN
CONSTITUTIONAL GEOGRAPHY: HOW NOT TO GET LOST IN THE LABYRINTHS OF SPECIAL REGIMES AND TERRITORIAL STATUS?
The distinctive status of various types of constituent entities within the Russian Federation, along with different types and levels of municipal entities, is further complicated by the establishment of special regimes governing the operation of public authorities and economic activities in specific territories. These territories are designated to fulfill unique roles, such as performing capital cities’ functions or addressing particular socio-economic, defence, scientific, technical, or innovative challenges and managing the property complex within these areas in specialized ways. However, the organization of these special regimes within parts of the Russian Federation's constituent entities or municipal entities can vary. An analysis of current legislative approaches reveals four primary models, distinguished by the scope and nature of public powers transferred by regional and municipal subjects to other public or private entities operating in these territories, and also by the forms and nature of interactions within the public authority system. The first model integrates city-state governance at the scale of a federal city with local self-government exercised in inner city municipalities. The second model, while preserving the territorial jurisdiction of both the regional and municipal levels, introduces additional forms of interaction among all levels of public authority, redistributes powers between them, and reassigns certain municipal powers, depending on the specific tasks within the territory. The third model involves transferring public authority to a management company established under private law. Lastly, the fourth model establishes a public-law entity that simultaneously exercises state and municipal powers, independent of the jurisdiction of regional and municipal entities. The latter two models, in particular, raise significant concerns regarding their alignment with the principles of federal structure, local self-government, democracy, and the equality under the law. Consequently, it is crucial to analyze legal instruments that could mitigate the risks of constitutional violations in implementation of these models.
RIGHTS AND FREEDOMS
FREEDOM OF SPEECH AND HARM FROM SPEECH IN U.S. LAW: THE HISTORICAL PATH AND CONTEMPORARY CHALLENGES
A significant part of restrictions on speech is based on a two-step model of harm: speech is prosecuted because it poses a risk of legally sanctionable consequences. This is how hate speech laws in many countries around the world are constructed. In the United States, the application of such laws is blocked by the standard established by the Supreme Court in Brandenburg v. Ohio: statements cannot be restricted unless they present an imminent and highly probable threat of lawless action. Historically, American law permitted the prosecution of statements with a “bad tendency”, that is, those that could bring harm in the future. This principle, firmly established at the beginning of the 20th century, discredited itself by being a basis for political persecution during World War I. In the 1920s, Justices O.Holmes and L.Brandeis criticized this practice and the prevailing legal standard. They were the first to assert that the prosecution of speech is permissible only if it presents a “clear and present danger” of a prohibited harm. The position of Holmes and Brandeis, supported by a Court majority in the 1940s, did not withstand the period of McCarthyism. Justifying the criminal convictions of leaders of the Communist Party USA, the Supreme Court returned the harmful speech doctrine to its original point. The Brandenburg standard, adopted by the court in 1969, marked the victory of opponents of censorship: speech cannot be prosecuted unless it poses an imminent and highly probable threat of serious harm. The doctrine has not changed, but its robustness is being tested by contemporary challenges. Due to the rapid development of communication technologies, some consider it outdated and inadequate to modern threats. However, the arguments of censorship proponents are not so new themselves. They are the same as those advanced during the anti-communist hysteria that shaped the American doctrine. The Brandenburg standard represents a well-considered legal position that very carefully assesses various risks. Society and State institutions tend to overestimate the danger of statements, thus complicating the proof of this danger. This does not, however, hinder the prosecution of actual (as opposed to verbal) crimes, nor does it impede citizens’ independent efforts to combat ideas they consider dangerous.
SPEECH ON CAMPUS: LEGAL REGULATION OF FREE SPEECH IN UNIVERSITIES IN COMMON LAW COUNTRIES
The problems of public activity of students and university staff expressing political, moral, religious, and other views on university campuses was discussed in academic literature and been the subject of a number of judicial cases in national courts long before the Israel-Palestinian conflict gave rise to mass protest actions at universities in the USA, Europe, and Asia. In the UK, complaints brought by right-wing professors and students mainly dealt with the deplatforming of invited professors with conservative, nationalist, or ultra-left views or of religious bigots. The mass wave of pro-Palestinian actions raised concerns about the possibility of sanctions against students who called for violent actions, occupied buildings, interfered with the teaching process or official ceremonies, or sent offensive e-mails to those who dared to dissent. The US, UK, Malaysia and India have been selected for analysis because of the difference in their legal cultures and approaches to regulation of speech. The new challenges spurred legal scholars and politicians to think again about the flaws and benefits of laisser-faire doctrine for free speech and of over-broadness of speech regulation and their opposite — excessive regulation of freedom of speech. The article analyzes the role of codes of conduct for students and professors as well as universities’ freedom to regulate the content of courses and reading lists, introduce or discontinue academic programs, agree or disagree with invitations to visiting lecturers with unpopular or even non-scientific views, and discipline those who violate university standards. It concludes that the search for balance involves difficult choices in response to the need for finding a fair response to calls for violence, discrimination, and dissemination of threats, in order to create a more safe university environment, one where students and staff of different ethnic origins, nationalities, and religions may benefit from the opportunities which the university offers for education and free development of personality. Different legal cultures propose different answers to the same questions.
ETHNIC FEDERALISM: ETHIOPIA
FISCAL FEDERALISM IN ETHNICALLY DIVIDED ETHIOPIA
Ethiopia, one of the most dynamically developing states on the African continent and one with which Russia has a long history of political and economic cooperation, became a BRICS state in 2024. On the political map, Ethiopia stands out for, among other things, its unique model of ethnic federalism. This provides subjects of the federation (regions) with a wide range of rights, including the right to secession. The 1994 Constitution of Ethiopia pays special attention to consolidating the original model of government, built on the principle of national sovereignty, which has obvious ethnic overtones. The Constitution proclaims “nations, nationalities and peoples” to be bearers of state sovereignty and grants them the right to self-determination including secession from the federal state. The constitutional regulation of fiscal federalism in Ethiopia has two successive stages. The first is a general scheme for the division of powers between the federation and its subjects, including in the sphere of economics and finance. Then a separate chapter details the distribution of rights in the fiscal sphere and creates financial guarantees for ethnic federalism. The principle of distribution of powers in the field of taxation between federation and regions, enshrined at the constitutional level, is important for any federal state. For modern Ethiopia, with its original model of ethnic federalism, the study of financial, economic and legal guarantees of decentralized public power is of particular importance. The formula of fiscal federalism enshrined in the 1994 Constitution establishes the exclusive powers of the federation and of the regions as well as their joint powers in the field of taxation. In addition, there is a procedure for the use of so-called unspecified powers, according to which both houses of the Ethiopian parliament acquire the right to adjust the formula of fiscal federalism in the event of the introduction of new taxes and fiscal regimes. The simultaneous presence of both centrifugal and centripetal tendencies in the state and political life of Ethiopia requires additional guarantees for the uninterrupted functioning of fiscal federalism. One such guarantee could be the application of preliminary constitutional control to decision-making procedures for the distribution of public finances.
ELECTION CAMPAIGN FINANCE
TWO STEPS FORWARD, ONE STEP BACK: LEGAL REFORMS OF ELECTION CAMPAIGN FINANCE IN USA
The article identifies two major waves of legal reforms of election campaign finance in the United States: 1971–2001 and 2002 – present. The first wave of reforms began in 1971 with the passage of the Federal Election Campaign Act, establishing legal frameworks for the regulation of election campaign finance in the United States. In 1976 the U.S. Supreme Court in Buckley v. Valeo struck down parts of the 1971 Act. The second wave began in 2002 with passage of the Bipartisan Campaign Reform Act, which tightened the legal limits on election campaign finance. The 2014 Supreme Court decision in Citizens United v. Federal Election Commission struck down the most controversial provisions of the 2002 Act. The article reconstructs the logic of legal reforms of election campaign financing during this period and argues that the direction of these reforms was determined by the confrontation between proponents of two legal traditions: libertarian and egalitarian. Depending on affiliation with one or the other of these traditions, the American legal community (both academic researchers, legislators and law-practitioners) chose corresponding legal tools for regulating campaign finance reforms. In the libertarian model, legislation protects freedom of public expression and creates more favorable conditions for new political players to enter the arena of election campaign politics. The cost of this model is the increased inequality of financial opportunity for candidates and political parties participating in election campaign competition. In the egalitarian model, legislation ensures formal financial equality of election campaign contestants and protection from financial foreign influence. The price for this is reduced opportunity for new political movements to speak publicly and increased chances for the ruling group to retain power.
CONSTITUTIONAL COURT: PERSONNEL COMPOSITION
JUDGES OF THE CONSTITUTIONAL COURT OF RUSSIA: WHO ARE THEY?
In scholarly literature the issue of judges of the Russian Constitutional Court is traditionally considered in terms of requirements for judicial candidates, the procedure for appointment, and guarantees of their judicial status. This approach does not add to an understanding of how the profession of Constitutional Court judge is developing. The article follows a different, empirical path. The authors analyze biographical information about the judges and present a portrait of the average (typical) constitutional judge over the entire period of the Court's work. Socio-demographic and other characteristics of judges are predetermined by the requirements of the law, including those which give judicial selection bodies a choice regarding, for example, the candidate's age and experience. These are of scholarly interest. This article also reviews characteristics of judges that are not regulated by law, such as gender, nationality, place of residence at the time of appointment, and others. Its research shows, in part, the following. From 1991 until today, 35 people have served as judges. During this time, the age of a sitting judge has increased significantly: in October 1991, it was 52 years, while now it is 68. The professional background of a judge has also changed dramatically: previously it was as a legislator, now it is that of a university teacher. A non-native Muscovite has been replaced by a Saint Petersburg resident. At first, a judge was selected from alternative candidates according to a relatively transparent procedure, but later in an opposite way. The attitude towards giving state awards to judges has changed: at the beginning of the Court's history, a judge could not expect them, but now a judge has an average of three awards from the President of the Russian Federation. But four socio-demographic characteristics of a typical constitutional judge have not changed over time: male gender, Russian nationality, higher legal education received in Soviet times, and an academic degree of Doctor of Law. The authors believe that the main issue arising in this regard and in need of further discussion is the chronic shortage of female Constitutional Court judges.
SCHOLAE
WALKING TOGETHER IS FUN? CHILDREN’S RIGHT TO FREEDOM OF PEACEFUL ASSEMBLY IN THE INTERNATIONAL LEGAL AND CONSTITUTIONAL LEGAL DIMENSIONS
The article is devoted to identifying and analyzing the main problems associated with the practical implementation of the right of children to freedom of peaceful assembly proclaimed in Article 15 of the UN Convention on the Rights of the Child. The purpose of the work is to determine the legal means that will allow achieving an optimal balance between ensuring the full socialization of children and guaranteeing their safety. The author sets the task of analyzing the constitutional recognition, protection, control and provision of this right based on a comparison of Russian experience and international standards in this area. The article assesses the compliance of the Russian Federation with international legal obligations in the field of human rights and the rights of the child, the state of legislation and law enforcement in the field of guarantees for the implementation of the right to freedom of assembly by children and adolescents. A comparison is made of the positions of the UN Committees on Human Rights and the Rights of the Child with domestic regulation, and the prospects for using the positions of other UN bodies, the Council of Europe and the OSCE in Russian law enforcement practice are assessed. The approaches to determining the scope of freedom of assembly, permissible restrictions and conditions for their practical implementation in historical, systemic, teleological, and casual interpretations are taken into account. The article analyzes doctrinal comments on the Convention and provides relevant examples of its implementation. The author concludes that existing international obligations and recommendations of the UN Committee on the Rights of the Child are not always adequately reflected in national legislation, which leads to disproportionate restrictions on the right of children to participate in peaceful assemblies. In this regard, attention is drawn to the obligation of states to respect the right of children to public demonstrations, to bear negative and positive obligations for its implementation. The analysis shows that a comprehensive approach is needed to protect and effectively implement the right, including both the development of legal regulation and the creation of educational initiatives, the development of international cooperation. In conclusion, a view is presented on the need to improve domestic legal regulation in this area, taking into account the integration of international standards into the national legal system and ensuring the full participation of children in society.