Available in Russian
AUGUST – SEPTEMBER • 2022
Czech Republic, India, Italy, Sweden, Switzerland, Thailand
BIOETHICS AND LAW
LEGAL ANSWERS TO QUESTIONS ABOUT EDITING THE HUMAN GENOME (CONSIDERING CRISPR-CAS9 TECHNOLOGY)
The emergence and improvement of human genome editing technology raises a number of significant legal questions about the prospects for its regulation. Some types of artificial modification of the human genome (and above all those that can be inherited) are currently blocked in many countries. The author attempts to understand in detail the reasons for this and whether it might have a more pragmatic alternative. To do this, the article presents the biotechnological aspect of human genome editing and its purposes; an outline of the modern legal framework for editing; and a summary of key medical, ethical and social concerns and possible ways out of the ideological impasse, deconstructing at least some of these concerns. The article takes into account not only the legal and ethical constructions that shape the relevant discussion but also the essence of editing in the categories of molecular biology. In addition, the analysis considers previously adopted reproductive and genetic technologies whose practice can help crystallize attitudes towards editing the human genome. The result of the study is a set of specific, practical proposals for legal regulation of human genome editing technology.
THE MECHANISM OF CONSTITUTIONAL REFORM IN SERBIA: PROCEDURE AND PRACTICE
The article examines the procedural stages for amending the Constitution of Serbia: proposal of an amendment to the Constitution; this proposal’s consideration and adoption by the National Assembly; development, consideration and adoption of an act to amend the Constitution; appointment and holding of a referendum to approve this act; and finally proclamation of the act by the National Assembly. It is shown that this procedure is more rigid than those in other countries, partly due to historical traditions. The normative basis of this analysis is, in addition to the Constitution, the laws on the National Assembly and on the Referendum and People’s Initiative, and also the Regulations of the National Assembly. Special attention is paid to the legal form for constitutional amendment, namely, constitutional amendments. This is reflected in the practice followed for making proposals to amend the Constitution in 2011, 2018 and 2020, and the adoption in 2021, at the initiative of the Serbian Government, of an Act to amend the Constitution containing Amendments I–XXIX on justice and prosecutor’s office issues and on a referendum for approval of this Act in 2022.
LEGAL AND PUBLIC INTERESTS IN ADMINISTRATIVE PROCEEDINGS IN RUSSIA: PROBLEMS OF INTERPRETATION
Adoption of the Code of Administrative judicial procedure of the Russian Federation (CAJP of RF) led to a new discussion of judicial protection in administrative cases. Despite the fact that the lawmakers directly noted the existence of a public dispute about the law, the concept of legitimate interests, their diversity, and their remedies are still unsettled issues at the regulatory level. The broad legal norms of this administrative legislation fundamentally influenced judicial practice. As a result judges tend to make abstract, imprecise formulations of the substance of legal and public interests. The author expresses her view of the legal nature of the statutory legal interests and offers an approach to determining their presence or absence based on an assessment of the materiality of the adverse consequences occurring in each case. Public interests are a more controversial and ambiguous matter. In accordance with the CAJP of RF they are considered to be objects of judicial protection, preconditions for terminating proceedings in an administrative case if the administrative plaintiff’s claim is repudiated, and also the basis for cancelling or amending court decisions in cassation and supervisory proceedings. The author considers public interests as one of the types of interests recognized in administrative law and offers a conclusion about the advisability of reviewing the role of the term “public interests” in the CAJP of RF. In order to concretize them, the author suggests personifying these interests so as to connect them to those having these interests.
CORRUPTION IN FOCUS: THE LEGAL PERSPECTIVE
THE CONSTITUTIONAL ANTI-CORRUPTION PRINCIPLE: A BRIEF COMPARATIVE VIEW
In the last 10 years, 131 countries out of 180 have made no significant progress in fighting corruption, Transparency International (TI) reported in January 2022. This demonstrates, once again, that new approaches to counter corruption need to be found. Constitutional law theory may be helpful here. The concept of an anti-corruption principle in constitutionalism, introduced in 2009 by Prof. Zephyr Teachout, remains an underappreciated legal concept. This principle declares that constitutionalism provides inherent anti-corruption tools which allow preventing corruption, combating it, and liquidating its consequences. This paper reviews the constitutions of many nations to discover, surprisingly, how different countries have written into their basic laws the same integrity support provisions. The few Russian authors who have done such reviews classified their findings based on regional perspectives. In contrast, we suggest that similar concepts appear in countries with very different legal and political cultures. Sometimes countries like Brazil and Ukraine has more common, than Malaysia and Singapore. This proves for another time that there are universal anti-corruption constructions, such as division of powers, parliamentary and judicial oversight etc., which are used to secure the integrity in countries with very different background. Therefore, the classification ought to be institution-based, not territorial based. More importantly, the emphasis should not be on declarations of anti-corruption commitment but on specific provisions limiting monopolies and official discretion, as well as ensuring transparency and accountability. Indeed, while countries like Equatorial Guinea prescribe anti-corruption commitment with one of the worst corruption perceptions score (CPI) in the world, countries like Germany or Georgia have a significant number of anti-corruption constitutional constructions without a single mention of “corruption” and “bribe” in their constitutions’ texts, while having a satisfactory CPI level. The constitutionalism idea provides for an anti-corruption platform anywhere it is implemented. This paper provides a very short demonstration of the correlation between a country’s perceived corruption level and its level of economic development and freedom. However, current instruments do not allow us to solve the question: can causation be found between the development of anti-corruption provisions in the fundamental law and the country’s position in the Corruption Perceptions Index by TI? This paper develops the concept of an Anti-Corruption Principle Development Index (ACPDI), which can help answer that question.
UNNAMED AND/OR UNNUMBERED BRANCHES OF GOVERNMENT IN COMPARATIVE CONSTITUTIONAL JURISPRUDENCE: PROSPECTS FOR THEIR INSTITUTIONALIZATION
BOOK REVIEW TUSHNET M. THE NEW FOURTH BRANCH: INSTITUTIONS FOR PROTECTING CONSTITUTIONAL DEMOCRACY. CAMBRIDGE ; NEW YORK : CAMBRIDGE UNIVERSITY PRESS, 2021
The article is a detailed review examining the complex issues of design of the fourth branch of power in a system of government formed as a constitutional democracy. Modern constitutionalism as an institutional mechanism of democratic governance has developed in the context of constitutional regulation and the experience of various institutions that ensure the protection of democracy. These institutions for protecting constitutional democracy may have constitutional or legislative status. They may have various names and be considered in the doctrine of constitutionalism or in the science of constitutional law as unnamed and/or unnumbered branches of government because of various conceptual approaches and the plurality of their number. The fourth branch of public power is gradually gaining popularity, occupying its constitutional position in the system of state bodies. In the field of comparative constitutional law, there is a significant pool of studies of various forms and institutions of the fourth branch of government but there are few scholarly works that summarize analytic approaches and evaluate the constitutional practice of fourth-branch institutions in various states. New methodological approaches to the study of institutions for protecting constitutional democracy as a fourth branch of government are based on the idea that this form of public power is a collective and integrating concept. The various forms and types of the fourth branch of government seem to be united by a common, constitutionally significant goal — to provide effective protection of democratic government. The article’s detailed review of the book analyzes the multifaceted issues of the constitutional design of the fourth branch of government, namely, the institution’s status, organization and activities, and efficiency throughout the XX–XXI centuries; the conceptual foundations of constitutional design and their logical and functional justification; and some constitutional-legal and institutional forms of the fourth branch of government such as constitutional courts, election commissions, state audit bodies, and anti-corruption agencies, with examples of their activities in the countries of North and Latin America, South Africa and Asia.
THE PRINCIPLE OF EQUALITY AND THE OBJECTS OF COPYRIGHT LAW: A COMMENTARY ON THE JUDGMENT OF THE CONSTITUTIONAL COURT OF RUSSIAN FEDERATION OF 16 JUNE 2022 NO. 25-P
The subject-matter of this judgment of the Constitutional Court is the question whether judicial protection of the rights of the author of a compilation work is admissible in a situation where he allegedly violated the rights of authors of works used in creating his own. The courts of previous instances, starting with the appellate one, decided that under such circumstances the author of a compilation work cannot defend his rights in court, without making any exceptions even for that part of the disputed work that was entirely produced by the creative effort of the author-compiler, acting here simultaneously as compiler and as the author of original work. The Constitutional Court decided that Section 3 of Article 1260 of the Civil Code of the Russian Federation interpreted in this way is unconstitutional by violating a number of norms of the Russian Constitution, in particular certain provisions of Articles 19, 34, and 44. The case under consideration concerns the rights to a computer program. However, there is some uncertainty about the extent to which the unconstitutional norm should be amended, namely, whether these changes should concern only computer programs or also all other objects of copyright law. It is also unclear whether the requirements of the Constitutional Court’s judgment are to be applied only to compilation works or also to derivatives that are regulated by this norm on a par with compilations. The commentary to the judgment shows that there are strong reasons in favor of a non-expansive, literal understanding and implementation of the judgment of the Constitutional Court. This is due to the peculiarities of computer programs, as these differ significantly from other copyright objects. In addition, it is shown that the current copyright regulation of computer programs does not take into account these special features adequately, thus yielding a number of paradoxes. Considering implementation of the judgment of the Constitutional Court in this matter, we have to admit that the legislator faces a difficult task, one which will be hard to complete without changing a number of key provisions in the legal regulation of computer programs.
THE FINE IS [NOT] OVERPAID: COHERENCE OF LEGAL RULES AS A CONSTITUTIONAL VALUE (USING AS EXAMPLE OF THE LAW OF ADMINISTRATIVE OFFENCES)
The proper functioning of a legal order is impossible without the coordinated operation of relevant legal rules. The lack of adequate coordination undermines the effectiveness of legal regulation, creating the risk of arbitrary application of the law. That is the reason why the Constitution protects the value of coherence of legal rules. This article considers this constitutional value by examining, as an example, the interaction between the rules allowing reduction of an administrative fine below its lowest prescribed level and the rules allowing payment of an administrative fine with a fifty percent discount, provided that it is paid within the first twenty days of its imposition. Recently, the Russian Supreme Court restricted the simultaneous application of these two legal instruments. Specifically, it did not allow the return of half of an administrative fine which had been paid within twenty days of its imposition in a case where a court later reduced the amount of the fine to half of its minimum amount. The author argues that such an approach makes the right to judicial protection illusory, since a court’s decision to reduce the administrative fine to half of its minimum amount will always remain unenforceable, bearing in mind that the Russian Code of Administrative Offenses allows a fine to be reduced to only half of its minimum amount. It is also argued that this approach undermines the right to private property and violates the principle of equality, since it puts citizens in an unequal position, depending on what means and in what order they seek to reduce the amount of an administrative fine. Finally, the article draws attention to the fact that this issue was raised before the Russian Constitutional Court but the court refused to address the problem. Therefore, the author concludes that it is necessary to amend the Russian Code of Administrative Offenses so that the simultaneous, coordinated application of these two legal rules is possible.