CCR № 4 (143) 2021

Price 1100 Rub.

CONTENTS

CONSTITUTIONAL WATCH

JUNE – JULY • 2021

Armenia, France, India, Mexico, Poland, Russia, Spain, Tunisia, Ukraine, USA

CONSTITUTIONAL DISCOURSE: CONCEPTS AND APPROACHES

CONSTITUTIONAL JUSTICE AND CIVIL SOCIETY IN SEARCH OF DIALOGUE

Armen Dzhagaryan

The Russian constitutional justice is going through a stage of deep reforming. Both the nature of the participation of the Constitutional Court of the Russian Federation in the constitutional reform of 2020, as well as the content itself and regulatory consequences have exposed a serious value and institutional crisis of the identity of the Constitutional Court of the Russian Federation in the State-legal system. The main vector of the reform declared in order to “strengthen the role of the Constitutional Court of the Russian Federation” is essentially resulted from the authoritarian, not humanistic paradigm, and leads to the development of the integration of constitutional justice into a unified system of public power remaining without proper legal deterrence. The noted crisis of the identity of the constitutional justice, which reflects the general problems of Russian constitutionalism, is to a large extent a product and expression of a fundamental communicative constitutional crisis, failures in establishing a constitutional dialogue between the government and civil society. At the same time, constitutional justice is not only the object of this communication with its defects and dysfunctions but should act as one of its main subjects, it has a unique extremely important potential for implementing the values and practices of constitutional dialogue with civil society, especially in the conditions of post-socialism. The constitutional dialogue also characterizes the content side of the constitutional justice itself in its modern understanding. In this context, the article discusses both general issues related to the understanding of constitutional dialogue itself and its importance for constitutional justice, as well as some more specific problems of implementing the dialogic model of constitutional-judicial control in Russian realities. Determining the direction of the further evolution of the constitutional justice, which has a unique potential for self-transformation, in any case, is an important area of responsibility of civil society, which itself must remain resolute in organizing the constitutional dialogue, not avoid attempts to initiate it and insist on it.

LAW IN A TIME OF CRISIS

STATE OF EMERGENCY IN POLAND: CONSTITUTIONAL REGULATION AND “HYBRID” NATURE DURING THE COVID-19 PANDEMIC

Valentina Chekharina

The COVID-19 pandemic became widespread across the world throughout 2020 and 2021 in an emergency that gravely impacted the health and lives of people around the world. States have taken exceptional measures to combat the pandemic, including controversial decisions to introduce emergency regimes, which have been questioned in regards to their compliance with constitutional regulations. The fight against the COVID-19 pandemic requires special measures, however they must remain within the constitutional framework. Consequently, the pandemic and its effect upon the legality of regimes in a state of emergency has captured the attention of legal scholars. The aim of this study is to analyse the constitutional regulation of the state of emergency in the Republic of Poland which was introduced in the country during the COVID-19 pandemic. In Poland, an emergency regime was introduced following an order by the Minister of Health. However the state of emergency (here, natural disaster) as stated by the Constitution was not introduced, although, according to analysts, some state bodies and officials had confirmed that all the necessary conditions for this were met. On 2 March 2020, the so-called Special Law on Coronavirus was adopted, followed by other regulations to fight the pandemic. These analysts stated that the measures introduced by the new acts corresponded to a legal regime containing the constitutional characteristics of a state of emergency, but lacked the appropriate constitutional procedure for their introduction. Presidential elections were held at this time, however legally they cannot be held during a state of emergency, as it indicates the presence of political interests in the choice of the regime. The unconstitutional procedure of the introduction of emergency measures alongside their characteristics of the state of emergency make it possible to consider the epidemic regime introduced in Poland a “hybrid” state of emergency, which is not detailed by the Constitution or legislation. On this basis, the study concludes that reasons behind the unconstitutional response to the COVID-19 pandemic in Poland can be found in both the Constitution, and in the manifestations of the crisis of the constitutional and legal system, which began with the reform of Poland’s Constitutional Tribunal by the ruling Law and Justice party in 2015.

JUDICIAL ARGUMENTATION

TO PERSUADE OR NOT TO PERSUADE? ON THE PURPOSE AND FUNCTIONS OF CONSTITUTIONAL ARGUMENTATION

Aldar Chirninov

Contemporary scholarship has consistently sought to generalize knowledge since the universality of scholarly knowledge is an indispensable attribute of scholarly knowledge itself. Nevertheless, these efforts sometimes encounter obstacles posed by the presence of objects, knowledge about which is difficult to universalize, primarily because of their functional dependence on other processes and phenomena. This is exactly the case with argumentation. Arguing that functions to be performed by argumentation vary considerably depending on the nature of the activity that argumentation serves, this article explores how the process of justification of constitutional judgments contributes to the development and functioning of the legal order and thereby reveals the purpose and functions of constitutional argumentation. Having synthesized the existing knowledge on judicial review of legislation with the possibilities that the means of argumentation provide to courts, and having indicated which judicial review tasks can be performed exclusively by resorting to argumentation, the author identifies the normatively correcting, normatively guiding (prognostic), cognitive and legitimizing functions of constitutional argumentation. This article gives specific reasons for highlighting the aforementioned functions and further details their substance. The author also focuses on the nodal nature of the cognitive function of constitutional argumentation, which is being implemented in three relatively autonomous dimensions: constitutionally due, normatively present, and being. Given that constitutional argumentation performs a normatively correcting function and that a constitutional dispute is characterized by a divergence of interests of its participants, the author refuses to consider the audience’s persuasion and its assent to a given thesis as an invariant purpose of constitutional argumentation. The article concludes that constitutional argumentation, because of its dependence on judicial review tasks, is aimed primarily at the formation of adequate understanding of constitutionally so that constitutional review organs may correctly and legitimately assess the constitutionality of a challenged law.

LAW AND SOCIETY

The article is available for free download

FOREIGN AGENTS IN RUSSIA: HOW A BORROWED AMERICAN LEGAL INSTITUTE ACQUIRED A DIFFERENT SENSE IN RUSSIAN LEGISLATION AND LAW ENFORCEMENT PRACTICES

Andrey Kondrashev

The article examines the institution of a “foreign agent” that appeared in Russian legislation in 2012. The author, analyzing American legislation, the position of the Venice Commission, the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe (hereinafter – the OSCE/ODIHR), the decisions of the Constitutional Court of the Russian Federation, as well as the existing Russian judicial practice, comes to the conclusion that ’misappropriation’ status of a foreign agent by the Ministry of Justice of Russia for non-profit organizations (hereinafter – NPOs) occurs in the absence of clear legal definition of the term “political activity”, does not correlate with the identification of the real connection and activities of NPOs on the order or instruction of a foreign donor, and is actually applied in those cases when it comes to appeals to government agencies, criticism of government agencies or assessment of their decisions. All this indicates that the purpose of the restrictions imposed by the state was by no means a desire to ensure transparency and openness through access to information about foreign financing of non-profit organizations, but rather the purpose was to politically stigmatize and impose additional organizational and financial burdens on NPOs, which dare to criticize the authorities. The author advocates the complete abolition of this institution of a foreign agent, since the pre-existing Russian legislation already made it possible to exercise control over the financing and activities of NPOs. The expansion of the number of types of foreign agents, introduced since December 2019 (first in terms of recognition by media as foreign agents), led by December 2020 to the appearance in Russian legislation of individuals of foreign agents and foreign agents-unregistered public associations and even greater and disproportionate restrictions on the constitutional the right to association. Moreover, the status of a “foreign agent” (in relation to a candidate for an elective office and a candidate affiliated with an acting foreign agent) is supposed to be introduced into the electoral legislation with the obvious goal of political stigmatization of persons trying to exercise their passive electoral right.

The text is available for free download

RUSSIAN FEDERATION: OPINION OF THE VENICE COMMISSION NO. 1014/2020 DATED ON 6 JULY 2021 ON THE COMPATIBILITY WITH INTERNATIONAL HUMAN RIGHTS STANDARDS OF A SERIES OF BILLS INTRODUCED TO THE RUSSIAN STATE DUMA BETWEEN 10 AND 23 NOVEMBER 2020, TO AMEND LAWS AFFECTING “FOREIGN AGENTS”

In the adopted at the 127th plenary session Opinion Venice Commission analyzed the objectives and rationale for the legislative amendments to the laws affecting “foreign agents”; expanding the range of individuals and legal entities that can be designated as “foreign agents”; expansion of administrative requirements and restrictions for “foreign agents”; expansion of sanctions for violation of these requirements and restrictions. The Commission concluded that the adoption of these amendments constitutes a serious violation of fundamental human rights, including freedom of association and expression, the right to privacy, the right to participate in public affairs, and the principle of non-discrimination and expressed especial concern about the cumulative impact of the latest amendments on organizations, individuals, the media and civil society in general.

HISTORICAL ANGLE

THE FORMATION OF THE COMPOSITION OF THE CONSTITUTIONAL COURT OF RUSSIA IN 1994–1995 (ON THE HISTORY OF THE ISSUE AND CONSTITUTIONAL AND LEGAL ASPECTS)

Mikhail Mityukov

The modernisation of the Constitutional Court of the Russian Federation in 1993–2000 was a result of the political and legal transformations of the 1990s, and the period of its procedural inaction for a year and a half was by no means time lost. It was used to prepare a new law for the Constitutional Court, which was largely prepared by the Court itself and accompanied by disputes with the State Legal Department of the Russian Federation’s president and various factions of the State Duma of the first assembly (LDPR, KPRF). Discussions were primarily held about the status of the Constitutional Court, such as the Court’s term in office, as well as its number of members, which greatly determined the effectiveness of the future “second” Constitutional Court of the 1993–1995 model and its internal structure. Filling the Constitutional Court’s six vacant seats as defined by the 1993 Constitution was not carried out by electing judges as in the previous legislation, but instead by appointing them to each of the chambers on the suggestion of the head of state. This predetermined an acute political struggle, primarily to establish the procedure for selecting candidates for judicial positions and determining the role of the president in each chamber of the Federal Assembly, the State Duma factions, legal institutions, and scientific communities of legal scholars. The independent “game” of each of these elements delayed the process of starting a functioning Constitutional Court for many months, but the democratic procedure for electing the courts’ heads allowed the issue to resolve without delay.

IN THE RUSSIAN CONSTITUTIONAL COURT

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT JUDGMENTS NOS. 20‑P – 29-P • 2021

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT RULINGS NOS. 1136-O, 1139-O, 1367-O, 1372-O • 2021