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CONTENTS
CONSTITUTIONAL JUSTICE
INDIRECT INDIVIDUAL ACCESS TO CONSTITUTIONAL JUSTICE IN RUSSIA
HThe article examines the institution of indirect access of citizens and organizations to constitutional justice in Russia, which is less fully covered in domestic legal scholarship compared to direct access — complaints from individuals about the violation of their constitutional rights and freedoms. The authors examine this institution in historical and legal dynamics, starting with the activities of Committee for Constitutional Supervision of the USSR and the Constitutional Court of the RSFSR, when indirect access was declarative in nature, and ending with the current state, enshrined in the current editions of the Constitution of the Russian Federation and the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”. The main attention is paid to the analysis of all forms of indirect access: court requests for constitutionality of regulations to be applied in specific cases, complaints from the Prosecutor General, federal and regional human rights commissioners, specialized ombudspersons, as well as all-Russian organizations that can represent the interests of individuals. Having studied the legislation and practice of the Constitutional Court of the Russian Federation in considering appeals from these bodies and officials, the authors conclude that the effectiveness of the relevant mechanisms is uneven compared to each other. Court requests for specific cases can be considered the most effective method of indirect access, which is confirmed by their frequency and law enforcement significance. Complaints from the federal ombudspersons have demonstrated a certain potential, but their use depends on the activity of a specific official. At the same time, the institution of complaints from the Prosecutor General turned out to be practically unclaimed, and new mechanisms — appeals from regional and specialized ombudspersons, as well as all-Russian organizations — are still in the process of formation. The authors emphasize the discrepancy between constitutional and legal norms and sectoral legislation, which complicates the full functioning of indirect access. The article proposes either reforming or abolishing ineffective institutions, as well as legal strengthening of new mechanisms in order to ensure real protection of citizens’ rights by means of constitutional justice.
CONSTITUTIONAL REVIEW BODIES’ ORDERS TO ENACT LEGISLATION: AN INTRODUCTION TO THE ISSUE
As a rule, a court decision’s value is in its implementation. Decisions of constitutional justice are no exception. The high mission of constitutional courts — bringing the legal system in line with the constitutional ideals — cannot be achieved without the participation of the legislature, which receives a large share of their rulings. It is logical that courts will seek to increase the effectiveness of enforcing their decisions by all available means. One such tool is an order to enact or to create legislation (normative order) which is an order made to the law-making body to amend legal rules, the aim is to remove a violation of the constitution. However, this part of constitutional court decisions usually goes unnoticed, not only in legal scholarship but also by the main addressee — the legislature. To gain a fuller understanding of normative orders, the author reviews constitutional courts’ jurisprudence in different legal families: common law (Canada, USA), civil law (Germany, Spain, Russia), and mixed systems (Israel, South Africa), also referring to legal doctrine, opinions of judges, and arguments of parties in court cases. The author focuses not only on the formal legal features of a normative order, but also on how it is developed inside the work of constitutional justice. The research shows that a normative order is an independent legal tool that serves different purposes than declaring a law unconstitutional, removing it from force, or interpreting it in a way consistent with the constitution. Normative orders can prevent future violations of the constitution and motivate the legislature to carry out the court’s decision, and most importantly, they can help the legal system develop. At the same time, the hypothesis that normative orders can only exist in a specific legal family or model of separation of powers is not confirmed. In reality, normative orders are very sensitive to various legal, political, and social factors, and identifying these factors requires separate research. Further study of normative orders, their origins, and their use in different countries could help address the larger problem of non-implementation or ineffective implementation of constitutional courts’ decisions.
LAW AND BIOTECHNOLOGY
BIOETHICAL DIGNITY IN HUMAN RIGHTS JURISPRUDENCE AND IN THE SYSTEM OF BIOLAW: THEORETICAL AND INTERNATIONAL LEGAL ASPECTS
The article proposes the concept of bioethical dignity. The author describes the international discussion and academic views on the understanding and practice of the formation of the concept of human dignity and biorights in the context of the development of the theory of bioethics, the principles of global bioethics, and international biomedical law. Thanks to the activities of UNESCO and the legal and ethical doctrines developed by the community of experts in the field of bioethics, biomedicine, and biolaw, a new legal entity has emerged since the end of the 20th — the first quarter of the 21st century — at the international, supranational, and intrastate levels. It may be referred to by different names: biolaw, biomedical law, bioethical law, or bioethics law. Bioethical dignity in the system of modern biolaw and bioethics, in human rights jurisprudence can be considered as a complex meta-legal and meta-ethical concept that arises in the doctrine of biojurisprudence and in bioethics, has partial legal consolidation as a result of formalization of the content of individual bioethical aspects of the dignity of a person, a child, the elderly, a disabled person, etc. Bioethical dignity, along with the principles of bioethics and guarantees of human rights in the field of biomedicine, is enshrined in acts of biolaw and indicates the emergence of legal biocentrism. This approach reflects the relationship between biological characteristics and social capabilities of various people. Conceptualization of bioethical dignity is associated with the process of understanding the nature, purpose, biosocial capabilities and abilities of a person in the context of the achievements of bioethics and biomedicine. Therefore, bioethical dignity contains a multi-layered perception of human nature and his attitude to other people, other living beings and the environment. The study notes that the emergence of a new paradigm of dignity is closely linked to the rise of bioethics itself during the last quarter of the 20th century and the first quarter of the 21st century. This period marked bioethics as the most relevant and responsive to the trends of the Fourth Industrial Revolution — an applied ethics that continues to interact with biomedicine, evolutionary biology, and genetics.
THE LEGAL STATUS OF THE HUMAN EMBRYO THROUGH THE PRISM OF CONSENT AGREEMENTS FOR CRYOPRESERVATION AND STORAGE OF EMBRYOS
The development of assisted reproductive technologies has significantly intensified a long-standing and multifaceted dispute concerning the legal and ethical nature of the human embryo. The diversity of perspectives within academic and professional discourse stems from two key factors: the absence of a clear legal definition of embryo status in Russian legislation, and the ethical uncertainty surrounding attempts to categorize the embryo either as a subject or an object within the framework of legal relationships. As part of this study, a comprehensive analysis was conducted of current Russian legislation, judicial practice, and doctrinal views expressed by experts in both the legal and medical fields. Particular attention was paid to the actual practice of law enforcement, namely the analysis of civil law contracts for cryopreservation and storage of embryos, which are publicly accessible through the official websites of medical institutions offering ART procedures. The review of relevant court decisions revealed that such contracts are generally recognized by the courts as valid legal instruments. This indicates that they are not seen as violating the fundamental principles of public order or morality, and the courts consistently refer to the contractual terms when making legal decisions in related disputes. The study also explored in detail the grounds for embryo cryopreservation as outlined in these contracts, including financial obligations, the duration of embryo storage, legal grounds for termination of the contract, and liability for breaches of storage conditions. Analysis of courts’ decisions confirmed that Russian courts place significant weight on the specific terms agreed upon by the parties, as well as the distinctive legal and practical features of ART, including the potential use of cryopreserved biological material. During the research, the author came to the conclusion that, in view of current Russian legislation and practice, the human embryo in Russia actually has the status of the legal object limited in turnover with a minimum set of characteristics of the subject of law. This reflects a complex balance between ethical, medical, and legal considerations surrounding the status of embryos.
LAW AND CLIMATE
THE CLIMATE CHANGE CHALLENGES: CONSTITUTIONAL RESPONSES
The United Nations Development Programme documents address climate change as an issue that determines human development for the present generation. Public concern about climate change is growing. This is evidenced by the increase in the number of climate assemblies in various countries of the world, convened on the initiative of both public authorities and non-governmental organizations. It is very significant that representatives of the younger generation are the ones that show interest in climate change issues. The term “climate constitutionalism” is widely used in the legal literature. It can be interpreted as a concept aimed at justifying the need to give constitutional status to relations connected with ensuring climate stability, or as a practice involving the use of constitutional principles, rights and procedures to counter climate change. And if the processes of constitutionalization are quite successful, their conceptual justification has not yet been properly developed. Climate change-related issues are being addressed in the drafting of amendments and new constitutions. The undisputed leaders in this field are the states of the Global South. Since 2005, there has been an increase in the number of climate litigation in the world, but the human rights dimension begins to be traced only in 2018. More and more judicial authorities are recognizing that government inactions or omissions regarding climate change can infringe on citizens’ constitutional rights. Separate attempts are being made to substantiate the actual climatic constitutional rights. The involvement of international human rights bodies in addressing climate change issues in context of the neglect of states’ human rights obligations is becoming more common. Rights-based climate litigation addresses global issues that cannot be resolved on a single country scale, so it is necessary to study positive practices, develop a global legal language and certain standards for dealing with climate cases, which can impact national constitutional systems.
HUMAN RIGHTS AND FREEDOMS
MEANINGFUL ENGAGEMENT AS A REMEDY FOR SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA
South Africa’s 1996 Constitution is renowned for its inclusion of an expansive range of justiciable socio-economic rights. The South African Constitutional Court has taken different approaches in the way it reasons its decisions and constantly tries to find appropriate ways of giving effective remedies in cases of socio-economic rights claims. The early years of scholarship on socio-economic rights in South Africa were primarily devoted to the merits and demerits of the Court’s approach. The focus has been the Court’s approach to the interpretation of socio-economic rights, particularly the reasonableness standard of review for the positive obligations imposed upon government by these rights. However, the Constitutional Court has developed an innovative practice called meaningful engagement in cases relating to evictions and the right to access adequate housing. This approach recognizes that there is a variety of legitimate ways to ensure and implement socio-economic rights, and also promotes the participation of both government authorities and communities, as well as individual citizens, in the resolving of cases concerning violations of these rights. Rather than impose a decision on the parties, the Constitutional Court directs the parties to engage together in a process to ensure that they themselves, as a result of dialogue, reach a settlement that would lead to a more optimal outcome for both sides, and also to ensure the implementation of socio-economic rights. The meaningful engagement allows persons whose rights have been violated to take part in the process of making state decisions concerning their rights. The deliberations that take place as part of meaningful engagement play a key role in identifying existing problems and circumstances of the case concerning violations of socio-economic rights, which contributes to making more substantiated judicial decisions and also allows to resolve the issues of legitimacy of the Constitutional Court’s decisions and its institutional competence. Overall, the practice of the Constitutional Court illustrates the significance of the participatory and deliberative democracy principles in resolving disputes over violations of constitutional rights. The article examines the emergence of the requirement for meaningful engagement, analyses the case law of the Constitutional Court of South Africa, and considers the benefits and disadvantages of this requirement.
JUDICIAL SYSTEM
THE TRANSFORMATION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION INTO A SUPER-INSTANCE: ESTABLISHING OF THE TENDENCY
This paper analyses the tendency of gradual transformation of the Constitutional Court of the Russian Federation from the constitutional review body to a body which task is to do judicial supervision on specific cases, frequently too technical, in vast spheres of law. The author demonstrates normative and doctrinal grounds for a factual check of ordinary courts decisions by the Russian body of constitutional review. Using the methods of analysis and synthesis, the author establishes the criteria for determination of instatiality of a certain judgment of the Constitutional Court and then applies them to its particular decisions. The implementation of observation and analysis as research methods allow the author to determine that the number of judgments, in which the Russian Constitutional Court, in fact, has to correct other courts’ legal mistakes, even based on constitutional norms, has been persistently high in recent years. The article demonstrates the distinctive significance of merits as a criteria of instantiality based on several most astonishing examples when the interference of the Russian Constitutional was not necessary. The implemented methods of analysis, synthesis and induction allow to make the following conclusions. Firstly, the tendency of the transformation of the Constitutional Court into a court of general jurisdiction, even if it can be called a super-instance, not only actually exists but is strengthening. Secondly, further increase in the amount of judgments in which the Constitutional Court has to correct mistakes of other courts in the cases which are not as difficult as they might seem, is a threat to its identity as a body of constitutional review and can even lead to the dismantling of this type of jurisdiction, making the unification of Supreme Court and Constitutional Court in Russia not unfeasible. Thirdly, author predicts that two discussions will continue — those on the place and role of constitutional justice in the Russian legal system and on the features of the decisions of the Russian Constitutional Court as sources of law.
DESSENTING OPINION
STRUCTURAL DEFECTS OF THE HIGHEST COURTS’ LEGAL POSITIONS
In the article, the author reflects on the contradictory positions of the highest national and international courts and the deterioration of the quality of their decisions, which leads to a conclusion about threats to the rule of law. Such deviations from the rules of jurisprudence can be seen in the field of the formation and change of legal positions on the application of the statute of limitations, the recognition of subjective rights to abortion, the formation of international customs in relation to the jurisdiction of the state. The author pays special attention to the arguments contained in the opinion of the U.S. Supreme Court in the case of Bouarfa v. Mayorkas. The totality of all legal features allows us to conclude that ignoring the established elements of legal systems occurs due to the insufficiently complete transfer of accumulated knowledge and experience in the field of jurisprudence between generations, or even due to the denial of such experience and knowledge as a result of the transformation of a civilizational nature. Modern law is a very complex phenomenon that includes a whole range of principles, doctrines, approaches, theoretical concepts, methodological guidelines, and types of interpretation of legal norms. Choosing in favor of some of them and ignoring others often depends on individual legal preferences, the peculiarities of the legal thinking of judges or the majority of judges who are members of the collegial composition of a judicial body. This is becoming another factor affecting the impartiality of judges.
HISTORY OF CONSTITUTIONAL THOUGHT
SOCIETAL CONSTITUTIONALISM: SOCIAL AND THEORETICAL FOUNDATIONS OF THE CONCEPT
The concept of societal constitutionalism was a reaction to the serious transformations of power that took place during the 20th century, which called into question division of this power into private and public. The activities of powerful national and transnational corporations carried out today affect citizens and civil society as a whole no less than the actions of public authorities. Supporters of societal constitutionalism seek to set limits on such social power through the constitutionalization of various spheres of social relations (economics, ecology, culture, science, health care, etc.). The theoretical prerequisites of societal constitutionalism are represented by various areas of legal thought, the most significant among which are the concepts of the economic constitution, legal pluralism, legal institutionalism, N.Luhmann’s theory of social systems and functional differentiation, global constitutionalism. The ideas developed within their framework largely correspond to modern realities, when society appears as a multitude of self-reproducing and self-regulating social systems that reach a global level and are relatively independent of national states. Legal regulation in such a society is increasingly being implemented not on a territorial basis within the borders of national states, but by functional spheres, including by the participants in the relevant relations themselves. All these diverse, relatively autonomous legal orders must be subject to constitutionalization in order to limit the forms of power realized in them. What the societal constitutionalism means to do is to solve this problem. Proponents of societal constitutionalism define it as a theory of a “new legal pluralism” and constitutional pluralism. In the context of societal constitutionalism, legal pluralism acquires a dynamic character; it focuses not on rules and structures, but on actions, and is defined not as a set of conflicting social norms, but as a multitude of diverse communicative processes and legal discourses, where the official law of national states or international institutions does not have any superiority.
SCHOLAE
ENFORCEMENT OF THE CONSTITUTIONAL NORMS BY A BODY OF CONSTITUTIONAL REVIEW: FROM THE FORMAL TO REALISTIC APPROACH
The procedure for making decisions by the constitutional review bodies has become an important subject of research in modern constitutional law. The perception of constitutional justice as a type of law enforcement activity leads us to expect that the constitutional courts act according to an appropriate algorithm, which is a solution to a syllogism, in which the major premise is a constitutional norm, and the minor premise is a norm of the act under review. Meanwhile, actual decisions often indicate that they were made in a different way. This article describes the factors that force constitutional courts to deviate from the classical application of the constitution. Among such factors, there is the difficulty of interpreting the constitutional text, which forces the court to express its will within the framework of construction. The article also reveals the problem of a possible conflict between morality and law when the constitutional review body strictly follows the text of the constitution to the decision, and discusses how this conflict cannot be ignored by the court, given its status, including as a public moral authority. The issue of emotional detachment required of judges by normative theories is analyzed separately. Using the achievements of psychological science, it is concluded that it is impossible, and that is why it is necessary to take a realistic view of the role of an individual judge in making a decision, as everybody is influenced by many external factors. These obstacles inevitably lead the constitutional review body to a voluntaristic method of decision-making, in which the necessary result is determined at the beginning, and then the appropriate constitutional norms and methodology for their interpretation are selected. Despite the obvious risk of judicial arbitrariness, it is quite possible to assume that this result-oriented decision-making is carried out by a constitutional court in good faith in order to protect the constitutional foundations and the rights of individuals. Meanwhile, full transparency is necessary, provided first of all by a detailed and honest reasoning. In addition, taking into account the described problems of constitutional law, it is necessary to review existing approaches to the nature of constitutional review in general.