CCR № 4 (149) 2022

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CONTENTS

CONSTITUTIONAL WATCH

JUNE – JULY • 2022

Albania, Australia, Bosnia and Herzegovina, Japan, Republic of South Africa, Russia, USA, Uzbekistan

DIGITALIZATION AND LAW

THE RIGHT TO GOOD GOVERNANCE IN THE DIGITAL TRANSFORMATION ERA

Elena Gritsenko

The right to good – i.e., proper or effective – governance has a complex character and international, supranational and national dimensions. It is understood ambiguously in that it relates both to the organisation of public authority in general (the right to good governance) as well as specifically to the right to prompt, impartial and fair administrative proceedings (the right to good administration). Informatization and its highest stage – digitalization – has a significant impact on the transformation of the right to good governance due to the emergence of new digital elements in the normative content of each of the rights included in the right of good governance. In the era of digitization, many rights are substantively affected: the right to apply to an administrative body in electronic form using information systems; the right to receive electronic public services; the right to disclosure of the motives of an automatically adopted administrative act; the right to access one’s personal information contained in information systems, i.e., in your digital profile; the right to protect your digital profile’s personal data by the confidentiality of these data; the right to depersonalize your data and delete it; the right to be heard using information technology; the right to pre-trial appeal in electronic form; and the right to e-justice. The legal formalization of the digital transformation of public administration in Russia is distinguished by a number of features: the absence of general administrative law and of basic regulation of administrative procedures; the concept that public services for people and business should be the foundation of legislation on the digitalization of public administration; and the development of new information solutions faster than the law comprehends them. The problems and risks of introducing digital elements and guarantees of the right to good governance include constitutional and legal issues related to the need to ensure the principle of equality, access of private entities to law, to public services, to information, to pre-trial and judicial protection; the problem in a number of cases of the lack of alternative means of electronic interaction between private entities and administrative bodies; the problem of insufficient regulation of the rights and obligations of all participants in electronic interactions, including operators of information systems and other entities employed by them for maintenance of these systems; the problem of shifting the regulatory functions of the rights and guarantees of private entities to the internal rules of information systems, i.e., the replacement of a legislative framework with internal rules such as algorithms that restrict rights; problems of meaningful differentiation of errors and violations made in the process of electronic communication of private entities with administrative bodies leading to, among other things, refusal to accept an application or provide a service; and the problem of contesting automatically made decisions, where the decision-making algorithm is hidden for security reasons, resulting in a lack of transparency.

CONSTITUTIONAL JUSTICE

CHANGING THE NUMBER OF JUDGES OF CONSTITUTIONAL COURTS: WORLD PRACTICE AND RUSSIAN EXPERIENCE

Olga Kryazhkova

The article concerns the practice of changing the number of judges of constitutional courts. It seeks to establish whether the reduction of the number of judges of the Russian Constitutional Court from 19 to 11 judges during the 2020 constitutional reform was a unique event and to understand the motives for this decision. The analysis systematizes information about the regulation of the number of judges of constitutional courts throughout the world; identifies the dynamics of regulation; and analyzes the arguments for changing the number of judges of the Russian Constitutional Court in 2020 and critically evaluates them. The article mainly uses two research methods: comparative law and legal history. Using the first method, the experience of regulating the number of judges of 67 constitutional courts which are members of the World Conference on Constitutional Justice was studied. The second method made it possible to trace how the number of judges of the Russian Constitutional Court was established and changed from 1991 to 2020. In more than 2/3 of the states, the number of judges of constitutional courts remained the same as it was originally, while in a little less than 1/3 of the states it has changed over time, in some cases increasing, in others decreasing. Russia belongs to the third and smallest group of states, in which the number of judges changed in both directions (as in Hungary, Egypt, Turkey, and Ukraine). The number of judges is usually set by the constitution but this does not guarantee that the number remains constant. Only two out of twenty states with a changing number of judges of constitutional courts established this by law (Kyrgyzstan and Uzbekistan). There are typical (recurring) and exclusive (characteristic only for one state) variations in the number of judges of constitutional courts in the world. In the latter category most often such courts consist of 9 judges. A legal history analysis shows that the initial number of judges of the Russian Constitutional Court (15 judges) was typical, was established consciously, but was not preserved, for objective and subjective reasons which emerged during a period of political transformations. An increase in the number of judges when the Constitution of 1993 was adopted was an alternative to completely replacing the composition of the Court and to changing the organizational model of constitutional control. Reduction of the number of judges of the Court in 2020 was publicly justified by various arguments which are more or less vulnerable to criticism. Particularly subject to criticism is the argument that the Court has always functioned without the full number of judges. From 1995 to 2015 it had a constitutionally established number of judges. This was ensured by, among other things, a rule allowing continuation of the performance of his duties by a judge who has reached the mandatory age limit until a new judge has been appointed. In 2014 this rule was revoked, creating favorable conditions for inaction by the authorities in replenishing the Court from 2015 to 2019 and leading to a reduction of the number of judges in 2020.

JUDICIAL POWER

RECENT JUDICIAL REFORMS IN RUSSIA: JUSTICE OR EFFICIENCY?

Olga Schwartz

Russian judicial reform that started in 1991 with the adoption of the Judicial Reform Concept Paper by the then Parliament – the Supreme Soviet (Council) of the Russian Soviet Federative Socialist Republic – was several times declared completed including by the Supreme Court President Vyacheslav Lebedev but is still ongoing. During those years new waves of reform lost its primary objective of strengthening independence and impartiality of the judiciary and became ever more technical, mostly aimed at decreasing the workload of courts and increasing their efficiency. There is nothing new in such an approach. In many countries similar measures were implemented due to shrinking budgets and heavier workloads but in Russia excessive preoccupation with efficiency almost destroyed the due process, especially in criminal trials where about 70% of cases were resolved without due court hearings because of the plea agreement or cooperation agreement entered into. Plea bargaining is one of the most popular forms of criminal procedure simplification. During last decades the use of plea bargaining by both common law and civil law countries increased substantially. Currently in the US ninety-seven percent of federal convictions and ninety-four percent of state convictions are the results of guilty pleas. European countries also demonstrate the intention to avoid lengthy and scrupulous criminal procedure rules. Council of Europe Committee of Ministers, when preparing its proposals for member states on simplification of criminal procedure, recommends such order of judicial proceedings where “plea bargaining or similar procedure shall be implemented according to which the offender is to announce publicly if he/she accepts the charges. In such cases the court shall have an opportunity to skip further investigation and move to the consideration of the offender’s personality.” Russian new Criminal Procedure Code adopted in 2001 seems fully in line with this recommendation as it includes the possibility for the defendant to enter into different forms of plea agreement. But although Russian special trial procedure and the plea bargaining are looking similar they substantially differ. In this article we are going to demonstrate how the pursuit for judicial efficiency in Russia led to further deterioration of its judicial system.

RIGHTS OF INDIGENOUS PEOPLES

RESOURCE RIGHTS OF INDIGENOUS PEOPLES AND THE JUDICIAL PRACTICE OF THEIR OBSERVANCE IN CANADA

Oxana Pimenova

Resource rights of Indigenous Peoples form the basis of their Indigenous way of life. To preserve it, the United Nations Declaration of the Rights of Indigenous Peoples calls upon nation states to observe and legally guarantee the resource rights of Indigenous Peoples. In its first section, the paper studies the judicial steps undertaken by Canada to recognize and enforce Indigenous resource rights. Indigenous land rights (titles) receive special attention in the paper’s second section. Focusing on the history of judicial decisions determining Indigenous titles, the paper traces how the Supreme Court of Canada has treated Indigenous titles as an element of the Canadian legal system. To establish the legal boundaries of Indigenous titles, the Court introduced special criteria for evaluating and adjudicating the presence of Indigenous titles. Unfortunately, some of those criteria have not contributed to legal certainty in recognizing Indigenous titles by the Canadian government and actually have restrained Indigenous communities from claiming and possessing these rights on their ancestral lands. The paper reveals these judicial dynamics and connects them with administrative efforts made by the Canadian government to control the use of Indigenous lands, especially as to resource extraction even if this negatively affects the lives of Native Peoples. The third section of the paper studies the constitutionally required consultations with Indigenous peoples, which are in fact used as an administrative tool by the Canadian government for controlling Indigenous engagement in the governmental decision-making process regarding resource development projects that can adversely affect Indigenous resource rights and titles. These consultations are formalistic and do not give Indigenous peoples a real role in evaluating the justification for and safety of natural resource extraction affecting them. Although the United Nations Declaration on the Rights of Indigenous Peoples calls for national governments to conduct Indigenous consultations through the institutions of the Indigenous representative authority, a government agency typically leads and conducts Indigenous consultations through close collaboration with an industry proponent. The paper examines the Indigenous consultations for the Trans-Mountain Pipeline Expansion Project (2018–2019) as an example of agency-led consultations where Indigenous communities were invited to participate but were unable to influence either the agenda or the outcomes of the consultations. As a result of the Native communities’ appeals to the Supreme Court, the Indigenous consultations over the Trans Mountain Pipeline Expansion project were overturned. The Court directed the government to redo them but still was reluctant to recognize that the government had not satisfied the Indigenous communities’ requests but instead had rushed through the consultation procedure for approval of the project. It was obvious that the Court was powerless to protect the natural resource rights of Indigenous peoples when the extraction project is a governmental project.

LAW IN THE PERIOD OF CRISIS

MODERN FEDERALISM IN THE CONTEXT OF THE COVID-19 PANDEMIC

Alexander Cherkasov

The experience of countering the COVID-19 pandemic in modern federations has revealed both the advantages and disadvantages of this form of state territorial structure in the fight against this public health threat. Complicated mechanisms of division of power between a federation and its subjects sometimes made it difficult to respond immediately to an emergency situation, leading to longer periods for coordinating planned actions. At the same time, in federal states it was possible to apply more flexible and differentiated approaches to individual territories and to use existing mechanisms of coordinating and harmonizing the actions of public authorities at various levels. There is a general consensus that federalism, on the whole, stood the test of the pandemic, although certain shortcomings in current institutional frameworks were exposed. The form of state territorial arrangement itself has hardly been the primary factor in determining the success or failure of a particular country in its fight against the COVID-19 pandemic. Among federations there were both states that successfully coped with the pandemic (Australia) and ones that experienced tangible problems in the fight against it (the United States). More significant were various geographic, demographic, historical, economic and cultural factors that determined the final results of countering COVID-19 in a particular state. In the context of the fight against the pandemic and the crisis caused by it, there was a natural strengthening of the role of federal institutions due to some weakening of the separation of powers both vertically and horizontally. The lessons of the pandemic have confirmed the important role of political parties and the party system, which may serve as both a unifying and a disintegrating factor. This was most clearly confirmed by the example of the United States, where the fight against COVID-19 took place against the backdrop of an acute electoral struggle between the Republican and Democratic parties. The experience of combating the spread of COVID-19 has also shown that those countries which coped with the pandemic more successfully had a governmental body at the federal level which made the most important decisions and coordinated the efforts of public bodies of different levels. This helped to combine coordination at the federal level with differentiation at the regional level.

POINT OF VIEW

CONTRA CONSTITUTIONEM LAW DEVELOPMENT BY THE PARLIAMENT OF ARMENIA

Artur Ghambaryan

The purpose of the article is to reveal the essence of contra constitutionem law development by the Armenian parliament in the context of its conflict with the Constitutional Court concerning the 2020 constitutional amendments. The objectives of the article are to present the concept and conditions for the justification of the contra constitutionem behavior of the parliament, to assess the need for its behavior contra constitutionem based on an urgent need for ensuring state-protective constitutional principles, and to discuss issues arising from the legal principle nemo iudex in sua causa as applied to the legitimacy of the inaction of the National Assembly. This appears contrary to the constitutional requirement to apply to the Constitutional Court for a determination of the constitutionality of the draft constitutional amendments of 2020. In the first part of the article, the parliament’s contra constitutionem behavior is discussed as to the concept of contra legem law development. Differences in the concepts of the contra legem and contra constitutionеm law development are also presented. In the case of the contra constitutionem law development, the parliament in a specific situation acts contrary to the requirements of a specific norm of the Constitution, but still in accordance with the state-protective constitutional principles enshrined in the constituent documents of the state. In the second part of the article, the author discusses the legitimacy of the adoption by the Parliament of the draft constitutional amendments for 2020 without applying to the Constitutional Court. The author qualifies this not as a contra constitutionem law development but as a violation of the Constitution itself, since the behavior of the Parliament was not aimed at ensuring state-protective constitutional principles in a state of necessity. The article discusses the decision of the Court of April 29, 2021, on the legitimacy of the behavior of the Parliament, in which it introduced a “reasonable exception” rule so as to justify the Parliament’s the adoption of the constitutional amendments of 2020 without recourse to the preliminary review of the Court. The author concludes that the conditions for the legitimacy of behavior contra constitutionem are actions in a state of emergency, based on state-protective principles and the impossibility of making urgent changes to the Constitution. Behavior contrary to the Constitution can be regarded as contra constitutionem law development, if the condition is met of curbing power-seeking.

PRAXIS

AND THE DARKNESS HAS COME: THE U.S. CONSTITUTION DOES NOT PROTECT THE RIGHT TO ABORTION ANYMORE

Danil Mamaev

In December 2021, the Supreme Court of the United States heard arguments in the case of Dobbs v. Jackson Women’s Health Organization. Mississippi’s Gestational Age Act, which prohibited abortions after 15 weeks of pregnancy, was subject to constitutional review. On June 24th, 2022, the Supreme Court issued its opinion having held that the U.S. Constitution does not guarantee a right to abortion. In doing so, the Court overruled two landmark decisions – Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey – issued by the Court in 1973 and 1992, respectively. The author of this article attempts to trace these developments chronologically and to put the Supreme Court abortion jurisprudence in both legal and political contexts. The primary part of the article is an analysis of the Dobbs decision, namely the majority opinion, several concurring opinions, and the dissenting opinion. Based on the text of the decision and points made by legal scholars in academic works and public comments, the author identifies factual and methodological flaws in the majority opinion and speculates how exactly the overruling of these landmark precedents might affect other constitutional rights guaranteed by the Supreme Court both before and after 1973. Analyzing the legal consequences of the Dobbs decision, the author concludes that the returning of the issue of abortion to the states does not simplify the situation, but, on the contrary, potentially invites a large number of jurisdictional disputes between the states, overflowing the federal court system. It is also noted that federal lawmakers could codify the right to abortion. However, taking into account the current political environment and the balance of power in the U.S. Congress, this scenario does not seem very plausible. Finally, the author discusses whether the legitimacy crisis of the Supreme Court is a part of a global trend and whether there might be a future need to reimagine the very institution of constitutional review.

IN THE RUSSIAN CONSTITUTIONAL COURT

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT JUDGMENTS NOS. 16‑P – 22-P • 2022

REVIEW OF LEGAL REASONING IN RUSSIAN CONSTITUTIONAL COURT RULINGS NOS. 1479-O, 1630-O, 1710-O, 1711-O, 1716-O • 2021