Sravnitel noe konstitucionnoe obozrenie最新文献

{"title":"COVID-19 pandemic as a challenge to constitutional legal order","authors":"N. Varlamova","doi":"10.21128/1812-7126-2020-6-17-30","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-6-17-30","url":null,"abstract":"The COVID-19 pandemic is certainly an emergency, it has affected almost all countries in the world and has a serious impact on the functioning of their authorities. In the current state of emergency, states have two strategies of action: to overcome it within the framework of the existing constitutional order and the current legal regulation, or to introduce a special legal regime. Today, the choice of these options for responding to the COVID-19 pandemic is being actively discussed by politicians and experts. Each of them has its pros and cons. In the event of a refusal to declare a state of emergency, the usual rules and procedures are used, which also allow the establishment of additional restrictions on human rights necessary in connection with the pandemic. This approach is attractive because it prevents the spread of panic and demonstrates that the state does not intend to resort to “draconian” measures. At the same time, a formal declaration of a state of emergency fosters awareness of the gravity of the situation and mobilizes society to combat it. Furthermore, this forces the state to openly declare what restrictions it is going to introduce, substantiate the actual existence of an emergency situation and the need for the measures used, and also indicate the time frame for this regime. This creates certain guarantees that the additional restrictions imposed on human rights will not apply to normal conditions. A state of emergency usually presupposes the concentration of public authority in the body (bodies) of executive power, often specially created for a given period, which in their activities largely replaces the parliament and regional authorities. However, in a pandemic, the “level of emergency” manifests itself differently in different regions of the country, which requires decentralization of governance, the involvement of regional authorities and civil society institutions. But the establishment of the necessary restrictive measures at the regional level very often contradicts the constitutional guarantees of human rights and freedoms, which cannot be corrected by the regional authorities, which “erodes” the constitutional order. The greatest danger is the abuse of emergency powers and their use for political purposes, as well as the preservation of certain emergency measures and the introduced legal regulation after the end of the emergency situation (actually existing or officially declared).","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126793711","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Defense of local autonomy in the Constitutional Court of Spain","authors":"Evgeny Y. Komlev","doi":"10.21128/1812-7126-2020-5-89-111","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-5-89-111","url":null,"abstract":"The article examines the procedure for considering complaints about violation of local autonomy in the Constitutional Court of Spain. The study is based on the analysis of legal regulation of such a category of cases as conflicts in defense of local autonomy and the relevant practice of the Constitutional Court of Spain. The aim of the study is to identify the features of Spanish procedure for protecting the local autonomy by means of constitutional justice, to determine the main advantages and disadvantages of the legal regulation of this procedure. As a result of the analysis, the author comes to the conclusion that the mechanism for defense of the local autonomy in the Constitutional Court of Spain is not free from significant drawbacks. Some of such drawbacks are mainly procedural, based on the relevant legal regulation (among them – excessive requirements for the municipalities or provinces in terms of the number of territorial entities authorized to lodge the complaint; the existence of some formal requirements that can be abolished without reduction in effectiveness of justice). Positions rooted in Spanish legislation and practice of the Constitutional Court of Spain regarding the place and role of local self-government bodies in the system of public authorities in some cases also have a negative impact on the limits of defense of the local autonomy. Such positions are often taken from German legal doctrine, but they are not always successfully adapted within the framework of the Spanish legal system. It seems that the drawbacks noted in the article do not allow to completely attain the aims for which local bodies were empowered to apply to the Constitutional Court of Spain. Among the advantages of the procedure for considering complaints about violation of local autonomy are the flexible approach of the legislator and the Constitutional Court of Spain to a number of issues; taking into account the historical and national (including linguistic) characteristics of Autonomous Communities; the interpretation of the disputed issues by the Constitutional Court of Spain mainly in favor of the applicants. The article formulates ideas regarding the possible improvement of the procedure for defense of the local autonomy in the Constitutional Court of Spain.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130852440","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constitutional social rights and their justiciability","authors":"A. Dolzhikov","doi":"10.21128/1812-7126-2019-6-16-49","DOIUrl":"https://doi.org/10.21128/1812-7126-2019-6-16-49","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131965457","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reality and potential of behavioral constitutional review: a comparative research","authors":"B. Lesiv","doi":"10.21128/1812-7126-2020-6-141-170","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-6-141-170","url":null,"abstract":"Constitution does not just contain simple general phrases, but directly regulates the governmental relations and establishes specific procedure for usage of power. Therefore, this usage cannot be “this or that” – it can only be such as is prescribed or allowed by the Constitution. This formula is designed to minimize the abuse of power, arbitrariness, and inadequate invasion of individual freedom. However, the established procedure would be no more than what Sartori called “a dead letter” if constitutional provisions were not supported by enforcement safeguards. Many legal orders, including almost all developed democracies, have such specialized mechanisms of constitutional review, which cover all types of governmental activity, whether it is the will of the legislature, executive acts, or judgments of courts. Citizens, as well as subjects of political arena, are provided with effective constitutional remedies. In other States, including Russia and some post-Soviet systems, only statutes (mostly laws) are subject to constitutional review. Actions and casual decisions of authorities can only be reviewed for compliance with the statutes in courts of general jurisdiction (administrative procedure). This article is an attempt to prove the existence of a separate body of constitutional misconduct, i.e. such possible manifestations of power, illegality of which is often difficult even to reveal in administrative proceedings due to the issues of a truly constitutional nature, let alone the possibility of curbing such acts by ordinary measures. The first paragraph presents an original classification of constitutional misbehavior – from a violation of a direct or implicit constitutional provision to a breach of the constitutional oath or citizens’ legitimate expectations. The second paragraph supports the theoretical dogma with the empirical basis, considering foreign practice of constitutional review. Real actions of the senior government officials of the United States, Germany, Austria, Italy, Australia, Lithuania, South Africa, etc. were held at various times as unconstitutional. The third paragraph is a discussion on the problem of administrative process’ capacity to ensure that the behavior of government is constitutional and to implement the goals of constitutionalism. Take, for instance, just some examples of constitutional misbehavior: religious-biased and intolerant speeches on the part of officials, the excess of “implied” powers, the unpredictable enforcement acts and executive decisions etc. There is no doubt that such misconduct is dangerous for constitutional democracy. But the real doubt is the ability and competence of administrative courts to judge such conduct on the merits of constitutionality. Research material shows that the legality of acts does not always mean their constitutionality, while the unconstitutionality of acts does not always mean the unconstitutionality of their statute ground. Thus, the author makes a valid conclusion ","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131296206","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constitutional watch: December • 2019 – January • 2020","authors":"","doi":"10.21128/1812-7126-2020-1-4-14","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-1-4-14","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"497 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134536915","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constitutional watch: August – September 2020","authors":"","doi":"10.21128/1812-7126-2020-5-4-12","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-5-4-12","url":null,"abstract":"Belarus, Egypt, Iran, Italy, Liechtenstein, Malta, Moldova, Montenegro, Russia, Ukraine","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133208333","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Correlation of restorative justice principles and fair trial standards in criminal procedure","authors":"O. Kiseleva","doi":"10.21128/1812-7126-2020-4-134-146","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-4-134-146","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"253 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132759503","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Emergency powers of the authorities of the constituent units of the federation (states) in Russia, the USA and Brazil amid the spread of a new coronavirus infection","authors":"A. Merkulenko","doi":"10.21128/1812-7126-2021-3-86-107","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-3-86-107","url":null,"abstract":"Due to the new coronavirus pandemic, high alert regimes were introduced across the Russian Federation in spring 2020. These emergency regimes were established exclusively by the state bodies of the Russian Federation’s constituent units – federal authorities did not introduce their own emergency regimes. This decentralized strategy of fighting the pandemic was also introduced by the USA and Brazil. Their states, without the sanction of the federal government, and in the case of Brazil, ignoring its bans, set emergency restrictions similar to those in Russia. The legal regulation of emergency regimes existed before 2020, when constituent units of the federation (states) actively used their emergency powers. However, the regimes introduced during the fight against the pandemic were slightly different to previous ones. The restrictions on rights and freedoms within these regimes were so severe that not only their proportionality was questioned, but there were also doubts as to whether the regional level of the government had the authority to establish such strict restrictions. In addition, the pandemic exposed old problems and revealed new shortcomings in the legal regulation of emergency regimes: lack of control over the realization of the emergency regime by legislative (representative) authorities, and gaps in legislative regulation – notably in the establishment of possible restrictions and of a mechanism for scrutinizing their proportionality. All this raised questions about the proportionality of the established restrictions. The Constitutional Court of the Russian Federation resolved a very insignificant amount of the problems. While the United States and Brazil faced similar issues, the practice of scrutinizing implemented restrictions in these countries was more common. This article takes domestic and foreign experiences into account, while examining certain aspects of the establishment and the operation of regional emergency regimes.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122940744","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The concept of types of popular representation","authors":"Dmitry Kireev","doi":"10.21128/1812-7126-2021-1-17-46","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-1-17-46","url":null,"abstract":"Democracy has many appearances. The principle of democracy is implemented in republics as well as monarchies, unitary states and federations. This article proposes a new dimension of democracy – the type of popular representation – which depends on the electoral system used in national parliamentary elections. The ownership of power in the state by the people is ensured by the functioning of a representative body elected by citizens and having exclusive authority to pass laws that are binding on all. In addition, the parliament participates in the formation of bodies of other branches of power and approves the budget. Thus, research into the manifestations of the institution of popular representation is important not only for countries with a parliamentary government, but also for all other states. The direct dependence of the composition of the legislature on the will of the people guarantees that the actions of the state are subordinated to the interests of this entity. An electoral system is used to identify this will of the people. However, the significance of this legal mechanism is not limited to the role of a guide between votes and parliamentary mandates alone. The electoral system is a “double-edged” instrument that can influence the exercise of power by the people. The purpose of this article is to analyse this influence and demonstrate the existence of three types of popular representation formed by different categories of electoral systems. Types of people’s representation arise as a result of the repeated application of a certain mechanism and the following establishment of the party composition of the parliament and party structure of the government. The established type of people’s representation is characterised by the varying degree of effectiveness of political parties in expressing and realising the interests of the people. In addition, the implementation of the principle of alternation of power and the functioning of the checks and balances are also dependent on the electoral system used. This article formulates a concept that makes it possible to differentiate the way democracy is developed in the state and to consider transparently the constitutional and legal consequences of the choice of the electoral system.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"119 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125153136","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Proactive law and reactive law: transformation of legal systems in the face of great challenges","authors":"V. Przhilenskiy","doi":"10.21128/1812-7126-2020-5-39-55","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-5-39-55","url":null,"abstract":"The paper substantiates the thesis that the distinction between proactive and the reactive rulemaking [lawmaking] becomes much more distinct and significant in crisis periods of societal development. In such periods, when social systems face huge challenges, the corresponding transformation of legal systems either follows the logic of preserving existing institutions and values (reactive law), – alternatively – goal-setting is based on lawmaking aimed at transforming the social reality (proactive law). Both proactive and reactive lawmaking can come into conflict with the existing constitution, moving society to change it by bringing it into compliance with changed goals and values or changed social realities. In this regard, the fundamental differences between proactive law and reactive law are determined, based on the necessity of introducing these understandings into the conceptual space of social legal analysis. In addition, the concept of anticipatory rulemaking, which has become widespread in Russian legal publications, is analyzed, and the irrelevance thereof to the purposes of the research in question is shown. The concept of proactive law is analyzed in more detail and depth, resulting in identification and description of two main types of this kind of rulemaking. The first type, called pragmatic proactive law, is rulemaking based on practical objectives. This type is characterized by an intention to change social reality without affecting the values of the society being reformed through development and adoption of new laws. Unlike the first one, the second type is initiated by a process of value reassessment and abandonment of old ideals in favor of new ones. The desire to restore the lost correlation between the system of values and social practices gives birth to ethico-teleological proactive law or value-based rulemaking. The transformations in legal systems during the last decade are further considered and analyzed in the context of the major challenges whose impact entails the need to choose between proactive and reactive rulemaking, and – in the instance of proactive rulemaking – gives rise to a dichotomy of the pragmatic-goal-oriented type and the value-based type. It is concluded that it is necessary to include a conceptual-and-methodological model of analysis in the toolkit of analysis of the lawmaking policy of present-day Russia, especially in evaluating the consistency of innovations with constitutional identity.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127424125","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}