Available in Russian
CONTENTS
CONSTITUTIONAL WATCH
JUNE – JULY • 2023
Israel, Latvia, Poland, Russia, Serbia, USA
UNIVERSAL STANDARDS OF HUMAN RIGHTS
THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: PHILOSOPHICAL AND CULTURAL REFLECTIONS ON THE UNIVERSALITY OF ESTABLISHED STANDARDS
The Universal Declaration of Human Rights was the first attempt to establish universal human rights standards. In order to identify common philosophical and ethical principles that could underpin them, a special UNESCO Committee of Experts sought the views of representatives of various governments, political parties, trade unions, as well as renowned scientists, artists, and theologians. Recent studies of archival data have shown that the survey’s methodology did not ensure the accuracy of its results, but these still demonstrated serious philosophical and cultural differences. The drafters of the Declaration quite deliberately rejected any philosophical justifications for human rights in order to secure the support of as many states as possible. One of the organizations that responded to the UNESCO Committee of Experts was the American Anthropological Association. Its 1947 Statement strongly criticized the UN project as reflecting exclusively European and American concepts. The Statement proposed not just taking into account existing cultural diversity when defining human rights, but went on to reject them altogether in favor of recognition of the unconditional right of various communities to live by their own rules and principles. The article traces the further evolution of the Association’s position on human rights, which reflects in concentrated form the problem of the incompatibility of universal human rights standards with the culture and the social practices of non-Western countries and their perception in these societies. The author concludes that the cultural uniqueness of different nations does not imply a rejection of the possibility of formulating universal human rights standards but just necessitates taking account of the broad historical, social, political, and economic context in order to find more comprehensive foundations. Contemporary international law accomplishes this primarily through the development of regional systems of human rights protection, these being currently the most effective.
DECISIONS OF INTERNATIONAL COURTS AND TREATY BODIES IN RUSSIAN JUDICIAL PRACTICE: NEW REALITY, FIRST RESULTS, POSSIBLE PROSPECTS
The significance of international law and the status and role of decisions by international courts and treaty bodies in the Russian legal system are radically changing following two turning points in the internal and external life of the country – the adoption of constitutional amendments in 2020 and the termination of Russia’s membership in the Council of Europe (CoE) and other international structures in 2022. After adoption of the 1993 Constitution of the Russian Federation, the interaction of international law and domestic law developed intensively. Russian judicial practice referring to decisions of international courts, especially the European Court of Human Rights (ECtHR), was extensive. This study with its analytical review of current judicial practice and of argumentation and decisions by the courts after those two turning points, seen against the background of prior judicial approaches and experience, reveals a change in courts’ perceptions of the decisions of international bodies and courts, as well as new trends and possible or future prospects. This research has been conducted by studng the extensive practice of domestic courts of all types and levels, making it possible to draw conclusions with a sufficient degree of reliability. Practice shows that the 2020 constitutional amendments became a counterbalance to one of the foundations of Russia’s constitutional order, namely, the role of international law in its legal system. Termination of membership in the CoE and its conventions and withdrawal from the jurisdiction of the ECtHR naturally led to a narrowing of the legal basis for the argumentation and validity of court decisions and to fencing off world and European standards of rights and protection mechanisms. Under these conditions, the constitutional right of citizens to apply to interstate bodies for the protection of their rights needs to be ensured. Acts of human rights treaty bodies may acquire new significance in the Russian legal system. It also seems expedient to gradually form a Eurasian mechanism for the protection of rights within one of the existing structures (the EAEU, the CIS, the SCO). The results of this study make it possible to formulate conclusions and to suggest possible emerging directions for further movement.
CONSTITUTIONAL JUSTICE AND EUROINTEGRATION
THE JUDGMENT OF THE CONSTITUTIONAL TRIBUNAL OF POLAND ON THE TREATY ON THE EUROPEAN UNION: AGGRAVATION OF POLAND’S CONFLICT WITH EU INSTITUTIONS
Since the end of 2015, Poland has been in a difficult situation with respect to the rule of law of the European Union (EU). Judicial reforms launched in 2017, strengthening the influence of the ruling Law and Justice party on the formation of the judiciary and on the system of disciplinary liability of judges, significantly aggravated the dispute between Poland and the bodies of the European Union. The Judgment of the Constitutional Tribunal of Poland, adopted on October 7, 2021, continued the conflict. The Tribunal found that the EU Court of Justice’s interpretation of Articles 1 and 19 of the Treaty on European Union in its decisions on independence of the judiciary is contrary to the Constitution of Poland. The Judgment of the Constitutional Tribunal should be viewed in the context of growing tensions in relations between EU institutions and Polish public authorities, which view the EU intervention as a restriction of Polish national sovereignty and identity. Analysts have noted the unprecedented nature of the decision, in that it denies the rule of law of the EU and the principles of loyal cooperation and effective judicial protection. It is difficult to find an analogous decision by a constitutional court of another EU Member State. The problems raised in this decision are related to the specifics of EU Member States’ implementation of constitutional control in relation to EU legislation. The formal shortcomings of the Tribunal’s decision are seen in its departure from previous judicial practice, as well as in problems that arose from improper composition of the Tribunal. Supporters of the Government’s position, however, have argued that Poland complies with binding international law and that all obligations arising from EU law remain in force. The decision of the Constitutional Tribunal of October 7, 2021, aggravated Poland’s conflict with European institutions and led to new court decisions. The Court of Justice of the European Union in its decision of June 5, 2023, in a long-standing dispute with Poland, confirmed that, although the organization of justice in Member States falls within the competence of these States, in its implementation, Member States must comply with their obligations under the legislation of the European Union.
NOTIONS OF THE GERMAN FEDERAL CONSTITUTIONAL COURT ON CERTAIN ASPECTS OF EUROPEAN INTEGRATION
Germany’s Federal Constitutional Court (FCC) plays an important role in interpreting the national constitution’s provisions for participation in the European integration process. The first category of cases that were considered by the Constitutional Court in the 1970s and 1980s were cases related to problems of human rights protection in acts adopted by institutions of the European Communities. According to the position of the FCC, the progressive development of integration law should not lead to a decrease in the standards of protection of the rights of German citizens provided by its Basic Law. The adoption of the EU Council Framework Decision on the European Arrest Warrant in 2002, stipulating minimum guarantees of the rights of accused and convicted persons during extradition, led to the resumption of the FCC’s control over the observance of human rights. Since the 1990s, the Constitutional Court has considered issues related to the procedure for and limits of the transfer of Germany’s sovereign powers to the European Union. These limits apply to decisions which cannot be made at the supranational level because they are governed by fundamental political and constitutional features, namely, the federal, legal and democratic nature of the German state. In modern legal discourse, these features are covered by the concept of constitutional identity. The Constitutional Court intends to decide whether the acts of EU institutions violate the constitutional identity of Germany until the Union has fulfilled its obligations to respect national identity provided by EU constituent treaties. Since 2019 the FCC has, on its own, evaluated EU legal acts for compliance with the EU Charter of Fundamental Rights. Many problematic issues have emerged as to the scope of the Charter and the FCC’s consolidation of its own position with the EU Court’s interpretation of the Charter in light of provisions of constitutional acts of other Member States and of the European Convention for the Protection of Human Rights and Fundamental Freedoms. However, the desire of the German Constitutional Court to act as a full-fledged participant in this judicial dialogue should be supported.
HUMAN RIGHTS AND THEIR LIMITATION
HATE SPEECH LAWS IN MODERN JURISPRUDENCE: IN SEARCH OF A RELIABLE FOUNDATION
This article critically examines the rationale behind prohibiting hate speech and the significant harm it causes. Drawing upon concepts from legislation, scholarship, and judicial practice, we identify two prominent models that capture the essence of these concepts. The first model posits that harm resulting from hate speech manifests itself not immediately, but in the future. It attributes the responsibility for this harm to the recipients of the message who, under its influence, engage in illegal acts such as violence or discrimination. The two-step harmfulness model, as we refer to it, presupposes a separate stage of message perception by a listener during the harm-causing process. The second model, in contrast, treats hate speech as directly undermining protected values and the legally established rights of others. Advocates of this model contend that certain words, by their very content, contradict the principles of equality and human dignity. We term this model the a priori approach, as the actual or hypothetical consequences of statements are deemed irrelevant for individual accountability. Taking Germany as a case study, we find that its legislative prohibitions on hate speech, enshrined in national laws, align with the two-step harmfulness model. Attempts to establish the a priori model, specifically through a framework of group insults, have proven to be both overly restrictive of discourse and inconsistent in addressing Holocaust denial. Further, we explore sources advocating for the a priori harmfulness of hate speech. These include hate speech provisions of international human rights documents, which are based on the value of equality, and the writings of contemporary jurists who uphold the prohibition of hate speech based on the concept of human dignity. Upon analyzing the arguments in favor of this position, we conclude that it runs counter to the traditional understanding of principles of freedom of speech, freedom of thought, and democratic principles. In addition, proponents of the a priori model significantly deviate from empirical reality in their arguments. Reviewing the case law of the European Court of Human Rights, we observe that the two-step harmfulness model, despite its inherent limitations, remains the applicable foundation for laws addressing hate speech. Its evaluative nature renders it unsuitable for consistent application. Consequently, accepting this model perpetuates a situation where courts and lawmakers inadvertently make democratic societies’ crucial civil freedoms and public discourse hostages to fortune.
CONSTITUTIONAL GUIDE
POLITICAL SIGNIFICANCE OF BUDDHISM AND THE CONSTITUTIONAL AND LEGAL STATUS OF THE BUDDHIST SANGHA IN THAILAND
The article discusses the features of Thai Buddhism, specifics of the religious legitimation of political power in Thailand, the history of relations between the Thai state and the Buddhist sangha, the constitutional and legal status of the latter, legal mechanisms for resolving conflicts that arise between the sangha and the state, the dynamics of development of Thai constitutionalism, and the reform of the sangha initiated by the military government after the 2014 coup. As a result of the systematic efforts of the monarchs of the Chakri dynasty and their entourage, the Thai sangha was placed under the direct control of the crown and its hierarchy was in fact fused with the state. There were several attempts of resistance in the 20th century but they all failed. The subordinate position of the sangha is designed to legitimize the monarchy and at the same time to eliminate potential threats from the sangha itself. Moreover, by consolidating elites, it helps to overcome external challenges (e.g., the threat of colonization that Thailand faced in the second half of the 19th century). In fact, there is a symbiosis between two types of legitimization – a traditional one and a charismatic one, where the latter is subordinated to the former. As a result, the sangha plays the role of a passive (disenfranchised) ally of the monarchy, Buddhist values have no serious influence on political processes, and Western economic models are quite organically integrated into Thai society. At present, however, this symbiosis poses a number of problems. First, it hinders the development of the sangha and Buddhist doctrine, which have difficulties in confronting alternative movements. Secondly, it undermines the authority of the monarchy itself, which is associated with archaic methods of governance and a corrupt and backward sangha hierarchy. Thirdly, it creates an alienation between the sangha and a large part of society, which perceives the sangha as an institution of the state rather than an independent force. Like other countries of the Theravada tradition, Thailand is the scene of a struggle between a conservative ideology, which assumes the rule of “good people”, and a democratic ideology, borrowed from the West. Both ideologies resonate in Thai society but have been discredited by elites pursuing their own selfish interests. Neither constitutional law nor political Buddhism has been able to offer a sustainable model of political power that takes into account both paradigms. The tensions inherent in Thai domestic politics are therefore likely to persist, at least in the short term.
POINT OF VIEW
THREAD OF ARIADNE OR ROAD TO NOWHERE? DISCOURSE OF FUNDAMENTAL RIGHTS IN FOREIGN PRIVATE LAW
The article analyzes foreign doctrinal approaches to the influence of constitutionalization on the private law of countries belonging to the Romano-Germanic and Anglo-Saxon legal systems and primarily to the prevailing form of this influence, which is the discourse of fundamental rights. This discourse affects private law in the modalities of subordination (direct horizontal effect or direct effect) and complementarity (indirect horizontal effect or indirect effect). The first modality, in which fundamental rights directly affect relations between individuals, is characterized by private law’s loss of regulatory and methodological autonomy. In the case of the second modality, autonomy is preserved and the influence of the discourse of fundamental rights occurs indirectly, through the reinterpretation of individual legal mechanisms by higher courts. Three approaches are distinguished in discussion of these issues. The first approach is represented by enthusiasts who believe that constitutionalization contributes to the modernization of civil law, making it more flexible and relevant to modern conditions and mitigating the adverse consequences of the privatization of public services in the transition from a welfare state to a “service state”. The second approach is that of legal realists who are convinced that constitutionalization, without affecting the essence of judicial decisions, only modifies the arsenal of arguments available to judges in both moderate (indirect effect) and radical (direct effect) expressions. The third approach encompasses the entire spectrum of criticism of the constitutionalization of private law, from moderate pessimism regarding its individual manifestations to uncompromising rejection of the whole. The conclusion is justified that under the guise of the discourse of fundamental rights, basic values that are fundamental for private legal relations (equality of parties, freedom of contract, and private autonomy) should not be distorted or devalued. Therefore the preferable form of promoting the discourse of fundamental rights is by indirect effect, which preserves the autopoiesis of private law and does not neglect the methods of resolving conflicts of interests and rights developed within it.