Authoritarian constitutionalism in Putin’s Russia: A pragmatic constitutional court in a dual state

2018 ◽  
Vol 51 (3) ◽  
pp. 201-214 ◽  
Author(s):  
Alexei Trochev ◽  
Peter H. Solomon
Keyword(s):  
Authoritarian Regime ◽  
Political Leader ◽  
Constitutional Court ◽  
Pragmatic Approach ◽  
Legal Norms ◽  
Successful Adaptation ◽  
Vladimir Putin

This article analyzes the successful adaptation of the Russian Constitutional Court (RCC) to an increasingly authoritarian regime under President Vladimir Putin. It argues that the key to its success lay in its pragmatic approach, whereby the Court decides cases that matter to the regime in a politically expedient way, while giving priority to legal and constitutional considerations in other cases, thereby recognizing the reality of a dual state. Over the years the RCC has taken a pragmatic approach in its reaction to changes in the rules of its operations, in its personnel, and in the policies of the popular political leader, including reducing the country’s subordination of European legal norms. In so doing, the Court and its skillful chairman Valerii Zorkin achieved considerable autonomy in pursuing its own legal vision on many issues and even improved the implementation of its decisions by other judges and political bodies alike (previously a big problem). In short, the RCC developed its own version of “authoritarian constitutionalism”, which may serve as a model for constitutional judicial bodies in other authoritarian states.

The Kelsenian Model of Constitutional Review in Times of European Integration – Reconsidering the Basic Features

2019 ◽  
Vol 19 (1) ◽  
pp. 7-37
Author(s):  
Aleksandra Kustra-Rogatka
Keyword(s):  
European Integration ◽  
Legal System ◽  
Constitutional Court ◽  
Centralized Control ◽  
Constitutional Treaty ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Legal Norms ◽  
Basic Features ◽  
The Eu

Summary The paper deals with the changes in the centralized (Kelsenian) model of constitutional review resulting from a state’s membership of the EU, which unequivocally demonstrates the decomposition of the classic paradigm of constitutional judiciary. The main point raised in the paper is that European integration has fundamentally influenced on the four above-mentioned basic elements of the Kelsenian model of constitutional review of legislation, which are the following: the assumption of the hierarchical construction of a legal system; the assumption of the supreme legal force of the constitution as the primary normative act of a given system; a centralised model of reviewing hierarchical conformity of legal norms; coherence of the system guaranteed by a constitutional court’s power to declare defectiveness of a norm and the latter’s derogation. All its fundamental elements have evolved, i.e. the hierarchy of the legal system, the overriding power of the constitution, centralized control of constitutionality, and the erga omnes effect of the ruling on the hierarchical non-conformity of the norms. It should be noted that over the last decade the dynamics of these changes have definitely gained momentum. This has been influenced by several factors, including the “great accession” of 2004, the pursuit of formal constitutionalization of the EU through the Constitutional Treaty, the compromise solutions adopted in the Treaty of Lisbon, the entry into force of the Charter, and the prospect of EU accession to the ECHR. The CJEU has used these factors to deepen the tendencies towards decentralization of constitutional control, by atomising national judicial systems and relativizing the effects of constitutional court rulings within national legal systems. The end result is the observed phenomenon, if not of marginalisation, then at least of a systemic shift in the position of constitutional courts, which have lost their uniqueness and have become “only ones of many” national courts.

Konstytucyjne zasady postępowania karnego na tle orzecznictwa Polskiego Trybunału Konstytucyjnego

2017 ◽  
pp. 67-86
Author(s):  
Arkadiusz Krajewski
Keyword(s):  
Civil Rights ◽  
Social Factor ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Legal Norms ◽  
Constitutional Tribunal ◽  
The Republic ◽  
Humanitarian Principle ◽  
The Right ◽  
Social Importance

The Constitutional Tribunal is defined as the Polish constitutional court and at the same time the judicial authority. It was created at the turn of 1982. Not long after that it began its jurisprudence; more precisely it was in 1986. Describing its basic tasks, it is pointed out that judicial review of so-called constitutional law deserves a closer look. This is particularly true about controlling the compliance of lower legal norms with higher legal norms. Here attention is drawn towards the connection of the Constitution with some international agreements, ie. the court of law. The purpose of the paper below was to analyze the constitutional principles of criminal proceedings in the context of the case law of the Polish Constitutional Court. At the beginning the concept, the division and the role of the constitutional rules of criminal procedure were presented. In this section, it was emphasized that all the rules of the criminal process are considered superior norms of a very significant social importance. Then the principle of objectivity, which is reflected in the Constitution of the Republic, was described. A following aspect was the discussion of the principle of the presumption of innocence and the principle of in dubio pro reo. It has been emphasized that the essence of the principle is that the person who was brought before the court is treated as innocent until a lawful judgment is pronounced against the defendant. The author also pointed out the principle of the right to defense. According to this rule, the defendant has the right to defend themselves in the process and to use the help of a defender. Another described principle is so-called rule of publicity. It concerns the fact that information about criminal proceedings should be accessible to the public. Then it was pointed to the principle of the right to the trial and the independence of the judiciary. The first one is reflected in national law and acts of international rank. The second shows that the independence of the judiciary is determined by the proper exercise of the profession of judge and becomes a guarantee of freedom and civil rights. The humanitarian principle and the principle of participation of the social factor in the penal process are shown in the final section. At the end of the paper a summary and conclusions were presented.

IZBOR I SASTAV USTAVNOG SUDA REPUBLIKE SRBIJE

2021 ◽  
pp. 225-236
Author(s):  
Ružica Kijevčanin ◽  
Keyword(s):  
Legal System ◽  
Quality Criteria ◽  
Constitutional Court ◽  
Constitutional Development ◽  
Independent State ◽  
Legal Norms ◽  
Comprehensive Picture ◽  
Supporting Pillar ◽  
Or Organization ◽  
State Functions

The Constitutional Judiciary is one of the basic state functions embodied in an independent state body called the Constitutional Court. The Constitutional Court protects constitutionality and legality, as well as human and minority rights and freedoms, by exercising the various and numerous competencies established by the highest legal act. Its role in the legal system is extremely important and irreplaceable, which implies an analysis of the organization of the Constitutional Court. Every organ or organization is made up of people. The human staff is the supporting pillar on the composition of which the efficiency, success and professionalism of the institution depend. Carefully selected members, based on quality criteria, are a guarantee for timely and productive work. By interpreting the legal norms that regulate the issues of election and composition of the Constitutional Court through different stages of the constitutional development of our state, we will create a comprehensive picture of the solution and come to a conclusion about possible improvements to existing rules.

Hungarian Constitutional Court: Keeping Aloof from European Union Law

ICL Journal ◽  
2011 ◽  
Vol 5 (3) ◽  
Author(s):  
László Blutman ◽  
Nóra Chronowski
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Constitutional Review ◽  
Legal Norms ◽  
Legal Rules ◽  
Tier System ◽  
Domestic Law

AbstractWhile the European Union is in the process of carefully navigating among the various forms of sub-federalism, Member States - including recent ones like Hungary, trying to find an equilibrium between their sovereignty and European supranationalism - have to cope with possible conflicts between their national legal systems and EU law. Since Hungary's accession to the European Union, the Hungarian Constitutional Court has faced questions regarding the constitutionality of EU legal rules and conflicts between European and national legal norms. This article examines these issues and analyzes criteria of constitutional review that the Court has gradually set out in dealing with some of these conflicts. So far, it has established two principles marking the boundaries of future constitutional practice. First, it will treat the founding and amending treaties of the European Union as part of domestic law for the purposes of constitutional review, thereby setting up a two-tier system of legal rules applicable within Hungarian legal practice instead of a possible three-tier construction that would distinguish between national, international and European law. Second, in the absence of jurisdiction to review substantive (un)constitutionality (as opposed to procedural constitutionality), the Constitutional Court does not regard a conflict between domestic law and EU law as a constitutionality issue and this mandates the ordinary courts to resolve such conflict of a sub-constitutional nature. Taking these conclusions as starting points, this article sets out the possible types of conflicts that may occur between EU rules and other legal rules applicable in Hungary, weighing the constitutional relevance of these conflicts; it also outlines the directions along which the practice of the Hungarian Constitutional Court may develop in this respect.

The Reconstruction of Memory at Constitution Hill

2008 ◽  
Vol 30 (1) ◽  
pp. 17-25 ◽  
Author(s):  
CHURCHILL MADIKIDA ◽  
LAUREN SEGAL ◽  
CLIVE VAN DEN BERG
Keyword(s):  
South African ◽  
Political Leader ◽  
Constitutional Court ◽  
African History ◽  
Constitutional Democracy ◽  
South Africans ◽  
The Past ◽  
Nelson Mandela ◽  
Former Prisoners ◽  
The Web

Abstract The Old Fort Prison was Johannesburg's main place of incarceration of prisoners for eight decades, including during the apartheid era. Virtually every important political leader in South African history, including Mahatma Gandhi, Nelson Mandela, Winnie Mandela, and Fatima Meer, as well as scores of ordinary South Africans caught in the web of colonial and apartheid repression, were imprisoned there. Today, this prison complex is home to South Africa's Constitutional Court. Constitution Hill has brought former prisoners to “map” their memories of the site. They also host public dialogues on the injustices of the past, as typified by the prisons at Number Four, as well as people's understanding of their constitutional needs and rights, and their experiences of the country's young constitutional democracy.

Equal to the Constitution: the Sources of Law of Highest Legal Force in the Russian Federation

2016 ◽  
Vol 4 (8) ◽  
pp. 0-0
Author(s):  
Михаил Пресняков ◽  
Mikhail Pryesnyakov
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Constitutional Law ◽  
The Other ◽  
Constitutional Court ◽  
Legal Norms ◽  
Other Hand ◽  
The Russian Federation ◽  
Juridical Acts ◽  
The Right

In article the question of validity of the Constitution of the Russian Federation and some other sources of the right which can also possess the highest validity is considered. In particular the author comes to a conclusion that legal positions of the Constitutional Court of the Russian Federation possess the highest validity and in total with the constitutional provisions represent the actual Constitution. On the other hand, both laws on amendments to the Constitution, and the universally recognized norms of international law on the validity stand below constitutional precepts of law. Acts of the Constitutional Assembly of the Russian Federation may in future be qualified as having the highest judicial effect. Such acts may abolish or change any provision of the present Constitution. At the same time the universally recognized norms of international law and the laws of the Russian Federation regulating amendments to the Constitution of the Russian Federation as independent juridical acts and sources of constitutional law are inferior as compared with the constitutional legal norms.

scholarly journals De Lincoln a Putin: el motivo visual del líder político caminando en los media españoles

2020 ◽  
pp. 193-204
Author(s):  
Alan Salvadó-Romero ◽  
Ana-Aitana Fernández-Moreno ◽  
Brunella Tedesco-Barlocco
Keyword(s):  
Political Action ◽  
Abraham Lincoln ◽  
Barack Obama ◽  
The Political ◽  
Political Leader ◽  
Visual Semiotics ◽  
Angela Merkel ◽  
Political Iconography ◽  
Vladimir Putin ◽  
Aby Warburg

How is power represented in politics? From the cinematographic fictions of Abraham Lincoln to photographs of politicians such as Barack Obama, Angela Merkel, or Vladimir Putin that have adorned the covers of national and international newspapers, the image of the walking leader has established itself as one of the most recurrent iconographies in the visual representation of political action. Despite this, the political leader walking has not been an object of analysis in studies on visual communication or political iconography. Starting from the prominent presence of this “visual motif” in the media and public imagination, we postulate that this perpetuation responds to a continuation and recognition of iconographic traditions that, despite their evolution and transformation, remain valid. Within the Movep research project, we developed a hypothesis on the representation of the political leader walking by studying a sample of the covers of the Spanish newspapers with the largest circulation (El país, El mundo, and La vanguardia) from 2011 to 2017. At a theoretical level, we start from the studies of political iconography by Carlo Ginzburg (2011), Horst Bredekamp (2007), and Christian Joschke (2012), all framed under the theses of Aby Warburg (1905) on pathosformel. The methodology used starts from visual semiotics and iconographic historiography to determine the predominant figurative features of the images. Likewise, by linking the analyzed photographs with audiovisual fiction and the plastic arts, we interpret the connoted planes of the image and identify the visual story that emerges from them, which is translatable into an ideology or political position of the actors involved. Thanks to this framework and using an analysis of the composition of the images, the dynamics with the physical environment, and the gestures of the subjects, we establish seven categories that expand the meanings. Resumen ¿Cómo se representa el poder en la política? Desde las ficciones cinematográficas de Abraham Lincoln hasta las fotografías de políticos como Barack Obama, Angela Merkel o Vladimir Putin que han vestido las portadas de los periódicos –nacionales e internacionales–, la imagen del líder caminando se ha consolidado como una de las iconografías más recurrentes en la representación visual de la acción política. Pese a ello, el líder político andando no ha sido objeto de análisis en los estudios de comunicación visual ni de iconografía política. Partiendo de la destacada presencia de este “motivo visual” en los media y el imaginario público, postulamos que dicha perpetuación responde a una pervivencia y a un reconocimiento de tradiciones iconográficas que, a pesar de su evolución y transformación, siguen vigentes. Dentro del proyecto de investigación Movep, desarrollamos la hipótesis sobre la representación del líder político andando mediante el estudio de una muestra de portadas de los diarios españoles de mayor tirada (El país, El mundo y La vanguardia) desde 2011 a 2017. A nivel teórico, partimos de los estudios de iconografía política de Carlo Ginzburg (2011), Horst Bredekamp (2007) y Christian Joschke (2012), todos enmarcados bajo las tesis de Aby Warburg (1905) sobre el pathosformel. La metodología utilizada parte de la semiótica visual y de la historiografía iconográfica para determinar los rasgos figurativos predominantes de las imágenes. Asimismo, mediante la vinculación de las fotografías analizadas con la ficción audiovisual y las artes plásticas, interpretamos los planos connotados de la imagen e identificamos el relato visual que surge de ellos, traducible a una ideología o posicionamiento político de los actores involucrados. Gracias a este marco y valiéndonos del análisis de la composición de las imágenes, la dinámica con el entorno físico y la gestualidad de los sujetos, establecemos siete categorías que amplían las significaciones.

scholarly journals Axiological Aspects of Anthropological and Social Sources of Law Formation

2021 ◽  
pp. 123-131
Author(s):  
Olena ZHURAVSKA
Keyword(s):  
Human Dignity ◽  
Social Practice ◽  
Public Perception ◽  
Constitutional Court ◽  
Legal Norms ◽  
The Public ◽  
Positive Law ◽  
Proposed Model ◽  
Social Idea ◽  
Legal Restrictions

The article analyses some axiological aspects of anthropological and social sources of law formation through the analysis of the system, which includes social (legal) values and principles of law. It is emphasized that such division and delimitation are quite conditional, since principles provide for the requirement of guidance by values. Significant social idea that has become a legal value is reflected in the principle of law, and is governed by law. It has been proved that the legitimacy of positive law in a modern state-organized society, which is characterized by such phenomena as the rule of law and civil society, is directly related to the extent to which it reflects social values. The source of law becomes in demand if the proposed model of behaviour provides protection, provision, reproduction of socially recognized value that is important to society. The public significance of the behaviour model receives legal support, public perception and reproduction in the course of social practice. Over time, the most important legal values are transformed into the principles of law and are concretized in legal norms. Among the most expressive legal values that are clearly reflected in international and national law there is human dignity, freedom, justice and equality. Human dignity is the basic idea of humanism, which proclaims the protection of a person, his/her rights and freedoms; the satisfaction of his/her interests and needs. In the national legal system, this value is reflected in the Constitution, which recognizes a person, his/her life and health, honour and dignity as the highest social value. The Constitutional Court of Ukraine recognizes human dignity as a system-forming value and a source of human rights. Freedom includes the issue of potential and real ability of a person to be a subject of law, reflected in the form of such principles of law as general permission and special permission. Justice as a legal value is a special mechanism for maintaining the balance of legal values, a means of justifying and recognizing legal restrictions, a criterion for assessing legal phenomena and institutions. Equality in law is understood today as equality of opportunities and is reflected in the form of the following interrelated aspects: equality before the law; equality before the court; equality of rights, freedoms and responsibilities of a person and citizen.

scholarly journals Content and forms of participation of the Constitutional Court of the Russian Federation in lawmaking

2021 ◽  
Vol 21 (2) ◽  
pp. 223-231
Author(s):  
Vitalii B. Sychev ◽  
Keyword(s):  
Public Life ◽  
Special Kind ◽  
Constitutional Court ◽  
Legal Research ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Legal Norms ◽  
General Scientific ◽  
The Russian Federation ◽  
Legislative Initiative

Introduction. The judicial constitutional review authorities ensure the supremacy and direct application of the constitutions. They also participates in lawmaking activities. Constitutional review authorities can participate in lawmaking activities directly or circumstantially. There are two kinds of the direct participation of such authorities in lawmaking activities: legislative initiative and participation in lawmaking activities in connection with the implementation of the constitutional review. The methodology of research is based on general scientific and special legal research methods. Theoretical analysis. Some authors note that the decisions of the constitutional review authorities can modify conditions of public life. Authors often emphasize that court decisions that rules certain norms as unconstitutional have the same goals as statutory acts. Empirical analysis. Constitutional courts administer a special kind of lawmaking, such as “positive”, “negative”, “adjusting” and “interpretative” lawmaking. “Positive” lawmaking is connected with the adoption of statutory acts, which regulate the activities of the constitutional courts. “Negative” lawmaking consists in ruling certain legal norms and sources of law unconstitutional and making them void. By means of “adjusting” lawmaking constitutional courts do not rule the norms as completely unconstitutional, but constitutionally interpret them. “Interpretative” lawmaking consists in clarifying legal norms of constitutions. The constitutional review authorities may also provide recommendations to the legislative authorities. Results. The constitutional review authorities can directly participate in lawmaking activities as a legislative initiative or in connection with the implementation of the constitutional control as “positive”, “negative”, “adjusting” and “interpretative” lawmaking. Circumstantial participation of such authorities in lawmaking activities is administered by adopting special messages.

scholarly journals Modern Features and Law-Enforcement Problems of the Operational-Search Measure «Inspection of Premises, Buildings, Structures, Sections of Terrain and Vehicles»

2018 ◽  
Vol 5 (4) ◽  
pp. 153-159
Author(s):  
A A Golikov ◽  
A A Larinkov
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Synthesis Method ◽  
Criminal Procedure ◽  
Constitutional Court ◽  
Search Activity ◽  
Legal Norms ◽  
Legal Method ◽  
European Court ◽  
Logical Method

The article deals with the actual law enforcement problems associated with violations of legal norms by the bodies engaged in operational-investigative activities in the course of conducting and documenting operational-investigative activities «inspection of premises, buildings, structures, areas and vehicles». The analysis of norms of the Federal law of 12.08.1995 No. 144-FZ «About operational search activities», the criminal procedure code of the Russian Federation, departmental normative acts, decisions of the European Court of human rights and the constitutional Court of the Russian Federation, Plenum of the Supreme Court of the Russian Federation, and also the practice of prosecutorial supervision over implementation of laws in the implementation of operative-search activities, identified various approaches to the assessment of the legality of the survey of housing in the framework of the operational-search measures «inspection of premises, buildings, structures, areas and vehicles». On the basis of the obtained data, the problems were identified and some prospects for the development of the operational search activities were identified. The authors in this paper propose possible solutions to the identified law enforcement problems and measures to further develop the possibility of using the information obtained during the operational-search activities «inspection of premises, buildings, structures, areas and vehicles» for the formation of criminal procedural evidence in criminal cases. The authors state their position on the basis of the analysis of the current operational-investigative, criminal-procedural legislation and prosecutorial-Supervisory practice. The methodological basis of the study was made by General scientific and special methods of knowledge of law enforcement problems of conducting and documenting operational search activities «inspection of premises, buildings, structures, areas and vehicles», including the method of system-structural analysis, synthesis method, analysis method, comparative legal method, formal logical method, statistical method. As a result of the study revealed that the information obtained in the course of operational-search activities «inspection of premises, buildings, structures, areas of terrain and vehicles», can be the basis for the formation of criminal procedural evidence in criminal cases only in compliance with the legal norms of the bodies engaged in operational-search activities during the production and documentation of the operational-search activities. At the same time, the admissibility of evidence formed on the basis of the results of operational investigative activities presented in criminal proceedings is made dependent on the implementation of certain legal norms in the production of the operational investigative measures under consideration. In the legal literature, innovations in the legislation of Russia related to various aspects of conducting and documenting operational search activities «inspection of premises, buildings, structures, areas and vehicles» traditionally cause a lively discussion. However, up to the present time in science and did not have a consensus on the concept and essence of the considered operational search activities. Analysis of the practice of prosecutorial supervision over the execution of laws in the implementation of operational-search activity indicates different approaches to assessing the legality of the operational-search activities. Thus violations of the legislation in practice of the bodies performing quickly-search activity during carrying out quickly-search action «inspection of rooms, buildings, constructions, sites of the district and vehicles» is very difficult task. First of all, due to the high requirements of operational-search and criminal procedure legislation, the results of operational-search activity, to the process of proof in General, and to certain types of evidence that are formed in criminal proceedings on the basis of the results of operational-search activity.

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