scholarly journals Loyalty to a Constitution and the Problem of Harmonizing the Ideas of Constitutionalism and the Fulfillment of International Obligations in the Field of Human Rights

2018 ◽  
Vol 5 (1) ◽  
pp. 167-180
Author(s):  
I A Kravets
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Constitutional Court ◽  
Protection Of Human Rights ◽  
International Obligations ◽  
Constitutional Justice ◽  
The Russian Federation ◽  
Theoretical Foundations

The article discusses the theoretical foundations of the concept of fidelity to the Constitution and judicial constitutionalization of the supremacy of the Constitution, the circle understanding of constitutional hermeneutics, the problem of the relation of constitutional justice and supranational jurisdiction, the role of the new authority of the Constitutional Court of the Russian Federation (consideration of cases on the possibility of enforcing the decisions of the intergovernmental body for the protection of human rights and freedoms) in the system for ensuring the rights and freedoms of man and citizen.

scholarly journals Application by courts of judgments of the constitutional court of the russian federation and the European Court of Human Rights in one case

2019 ◽  
pp. 125-133
Author(s):  
A. V. Chaykina
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Point Of View ◽  
Vienna Convention ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
The United Kingdom ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Russian Federation

The paper deals with the problem of the application by the courts of the Russian Federation of decisions of the Constitutional Court of the Russian Federation and the European Court of Human Rights in the same civil case. The problem is caused by the uncertainty of the hierarchy of these sources of law in terms of international and national law. The issue of non-fulfillment of ECtHR judgments was considered from the point of view of the provisions of the Vienna Convention on the Law of Treaties of 1969. The author analyzes foreign practice on the execution of judgments of the ECHR. In particular, the author analyzes the practice of the United Kingdom and the Federal Republic of Germany, having faced with the contradiction of the fundamental norms of the state with the ECtHR judgments.The mechanisms to balance the legal positions of these courts have been revealed. The author suggests considering Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms as one of the possible means to eliminate the contradictions between the Constitutional Court of the Russian Federation and the ECHR. The procedure of advisory opinions, from the point of view of the author, may make it possible to coordinate the legal positions of the ECHR and the national practice of applying the Rome Convention to the stage of submitting a complaint of Russian citizens to the ECHR.

The Letter and the Spirit of the Russian Constitution: 20 Years' Experience of Harmonization in the Light of Constitutional Justice

10.12737/1141 ◽  
2013 ◽  
pp. 5-17
Author(s):  
Николай Бондарь ◽  
Nikolay Bondar
Keyword(s):  
Russian Federation ◽  
Legal Pluralism ◽  
Legal Positivism ◽  
Constitutional Court ◽  
Constitutional Development ◽  
World Outlook ◽  
Russian Constitution ◽  
Constitutional Justice ◽  
The Russian Federation

Based on 20-­year­-old experience of the constitutional development of Russia and the generalization of practice of the Constitutional Court of the Russian Federation in the article there revealed the interrelation between external, formal-­legal and internal, sacred principles of the Constitution of the Russian Federation of 1993 and its spirit. In accordance with the methodology of world outlook and legal pluralism, a combination of legal positivism and natural law in the Constitution, and with regard to the legal and doctrinal nature of decisions of the Constitutional Court of the Russian Federation, there revealed the role of constitutional justice as an institution of social and cultural harmonization of its letter and spirit, the formation of a «live» (court) constitutionalism.

scholarly journals The System of Procedural Principles of Proceedings in Administrative Offenses Cases

2020 ◽  
Vol 15 (11) ◽  
pp. 153-159
Author(s):  
A. R. Nobel
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
European Convention ◽  
Constitutional Court ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Russian Federation ◽  
The Right ◽  
Procedural Decisions

The paper provides definitions of the principles and system of principles of proceedings in cases of administrative offenses. Based on the norms of the Constitution of the Russian Federation, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Code of Administrative Offenses of the Russian Federation and the practice of their application, the author substantiates the position that the principles of proceedings in cases of administrative offenses are, to varying degrees, enshrined in regulatory legal acts constituting legislation on administrative offenses, both directly and indirectly. The system of procedural principles of proceedings in cases of administrative offenses is revealed. The author includes the following principles in this system: open consideration; state language; direct examination of evidence; freedom to evaluate evidence; compulsory consideration of applications; freedom to appeal against procedural decisions; competition and equality of the parties; fair consideration of the case; ensuring the right to defense. The content of these principles having a pronounced procedural nature is formed through a systemic interpretation of the provisions of the Constitution of the Russian Federation, the European Convention on Human Rights, the Code of Administrative Offenses of the Russian Federation, the case law of the Constitutional Court of the Russian Federation and the European Court of Human Rights. The author concludes that, despite the existence of various ways of consolidating the procedural principles of proceedings in cases of administrative offenses, the greatest efficiency of their perception and application will be achieved only when the principles are reflected in a special chapter of the Code of Administrative Offenses of the Russian Federation.

scholarly journals THE CONSTITUTIONAL COURT IN THE SYSTEM OF JURISDICTIONAL BODIES (OF GODLY SINS OF CONSTITUTIONAL JUSTICE)

2017 ◽  
pp. 0-0
Author(s):  
Николай Бондарь ◽  
Nikolay Bondar
Keyword(s):  
Russian Federation ◽  
World Order ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Special Role ◽  
Constitutional Justice ◽  
The Russian Federation ◽  
The Law ◽  
The Government

Analyzing the place and role of the Constitutional Court of the Russian Federation in the institutional system of national and supranational jurisdictions, there is the author’s approach to the study of this institution in particular through the prism of the so-called constitutional paradoxes (“godly sins”) of the constitutional justice. Among them: legal involvement of the Constitutional Court of the Russian Federation in the resolution of important constitutional questions at the intersection of law and policy; entering into the system of justice and at the same time transcending it as the trial of the government and the law; the legal force of the final acts, which are not laws, can be above the law; the stability of the Constitution in conjunction with socio-historical dynamism, the problems of guaranteeing its supremacy in collaboration with supranational jurisdiction, the need to ensure by the constitutional justice of the Constitutions’ supremacy in collaboration with the international-legal regulation and supranational jurisdictional practices. The article explains that the status characteristics of the national organs of constitutional justice, manifested in the contemporary world order and in relations with bodies of international jurisdiction, have a constitutional good nature and serve as a confirmation of the special role of these bodies in the justice system in modern constitutional democracies.

scholarly journals Enforceability of ECtHR Judgements in Russia: Alternatives of Interaction Between Jurisdictions

2018 ◽  
Vol 50 ◽  
pp. 01192
Author(s):  
Ivan Usenkov ◽  
Igor Morozov
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Constitutional Law ◽  
European Convention ◽  
Constitutional Court ◽  
Legal Analysis ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Russian Federation

Issues of enforceability of the European Court of Human Rights judgements in Russia are considered in the article. The authors infer the priority of the model, in which judgements can be unimplemented if they are contrary to the constitutional law of the country in accordance with comparative legal analysis. However, the state is ought to make everything possible in order to enforce the decision, even interpret the Constitution, if possible. The authors conclude that issues of correlation of sovereignty and regional consensus, subsidiarity principles and supranationality, interpretation of the European Convention for the Protection of Human Rights and fundamental freedoms have not obtained a response. The European Court of Human Rights should be more thorough with the aspects of the national legal systems, but rejection of the execution of its judgements is unacceptable. Relevant provisions are to be excluded from the FCL from 21.07.1994 N 1-FCL «The Constitutional Court of the Russian Federation».

Constitutional justice and civil society in search of dialogue

2021 ◽  
Vol 30 (4) ◽  
pp. 17-40
Author(s):  
Armen Dzhagaryan
Keyword(s):  
Civil Society ◽  
Russian Federation ◽  
Constitutional Court ◽  
Public Power ◽  
Judicial Control ◽  
Constitutional Justice ◽  
The Russian Federation ◽  
The Government ◽  
Unique Potential

The Russian constitutional justice is going through a stage of deep reforming. Both the nature of the participation of the Constitutional Court of the Russian Federation in the constitutional reform of 2020, as well as the content itself and regulatory consequences have exposed a serious value and institutional crisis of the identity of the Constitutional Court of the Russian Federation in the State-legal system. The main vector of the reform declared in order to “strengthen the role of the Constitutional Court of the Russian Federation” is essentially resulted from the authoritarian, not humanistic paradigm, and leads to the development of the integration of constitutional justice into a unified system of public power remaining without proper legal deterrence. The noted crisis of the identity of the constitutional justice, which reflects the general problems of Russian constitutionalism, is to a large extent a product and expression of a fundamental communicative constitutional crisis, failures in establishing a constitutional dialogue between the government and civil society. At the same time, constitutional justice is not only the object of this communication with its defects and dysfunctions but should act as one of its main subjects, it has a unique extremely important potential for implementing the values and practices of constitutional dialogue with civil society, especially in the conditions of post-socialism. The constitutional dialogue also characterizes the content side of the constitutional justice itself in its modern understanding. In this context, the article discusses both general issues related to the understanding of constitutional dialogue itself and its importance for constitutional justice, as well as some more specific problems of implementing the dialogic model of constitutional-judicial control in Russian realities. Determining the direction of the further evolution of the constitutional justice, which has a unique potential for self-transformation, in any case, is an important area of responsibility of civil society, which itself must remain resolute in organizing the constitutional dialogue, not avoid attempts to initiate it and insist on it.

scholarly journals Russia`s Participation in the European Convention for the Protection of Human Rights and Fundamental Freedoms

2021 ◽  
pp. 46-56
Author(s):  
A. Y. Novoseltsev ◽  
K. V. Stepanyugin
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
International Organizations ◽  
Point Of View ◽  
European Convention ◽  
Constitutional Court ◽  
International Treaties ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Russian Federation

INTRODUCTION. The article examines problematic issues of Russia’s participation in the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to the authors, the form of Russia’s participation in the Convention, associated with membership in the council of Europe, is unacceptable for its sovereignty. When ratifying the Convention, the degree of objectivity and impartiality of the ECHR in relation to the Russian Federation and the properties of the legal norms of the Convention were not taken into account.MATERIALS AND METHODS. The materials for the research are international agreements, resolutions of international organizations, decisions of the ECHR and the Constitutional Court of the Russian Federa- tion, as well as doctrinal sources on the topic. The methodological basis of the article was formed by general scientific and special research methods. The article critically analyzes the arguments in favor of Russia’s participation in the European Convention and examines the reasons why the ECHR can hardly be called an objective court for a country that is not a member of the EU.RESEARCH RESULTS. The authors believe that the unenforceability of ECHR judgements is only part of the problem of enforcing binding decisions of international organizations. According to the authors, it is necessary to determine the fundamental foundations of Russia’s participation in international organizations that can make decisions legally binding for our country, and to limit their circle to the participants of the integration association with Russia, organizations of strategic partners, as well as organizations in which Russia can influence the adoption decisions. The principles of Russia’s participation in international organizations that make legally binding decisions should be included in the Federal Law “On International Treaties of the Russian Federation”.DISCUSSION AND CONCLUSIONS. The subordination of Russia to the jurisdiction of an interstate human rights body must meet a number of conditions that the ECHR does not meet. Because of this, problems arise with the implementation by Russia of the decisions of the ECHR. The authors share the point of view that the ECHR is an effective mechanism for the protection of rights and freedoms, but only for a group of states – European integration participants bound by common interests, values, and coordinated foreign and domestic policies. Therefore Russia needs to return to the rules of cooperation in the field of human rights with European states, set out in the Helsinki Final Act on Security and Cooperation in Europe.

Executive Force of the ECtHR Judgments in a Legal System of the Russian Federation (on the Basis of the Practice of the Constitutional Court)

2016 ◽  
Vol 4 (12) ◽  
pp. 0-0
Author(s):  
Сергей Князев ◽  
Syergyey Knyazyev
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
European Convention ◽  
Constitutional Court ◽  
Systematic Analysis ◽  
European Court ◽  
Russian Constitution ◽  
Protection Of Human Rights ◽  
The Subject ◽  
The Russian Federation

The article deals with the complex of issues concerned with the acknowledgement of the executive force of judgments of the European Court of Human Rights (ECtHR) and ensuring their implementation in the Russian Federation. According to the author, the main difficulties of the implementation of the Convention´s provisions for Russia are not connected with the Convention for the Protection of Human Rights and Fundamental Freedoms per se, but the interpretation of its norms in the judgments of the ECtHR. The author emphasized that the ECtHR usually avoids the direct conflicts with the Russian constitutional order in a process of decision-making and their execution does not cause any problems in a majority of cases. However, the active using of such tools as evolutive interpretation, European consensus, limits of national discretion, etc. by the ECtHR leads to the fact that its judgments are in contradiction with the Russian Constitution or legal positions of the Constitutional Court of the Russian Federation. Such ECtHR judgments are the subject matter of analysis of present article in a view of the assessing their executive force. On a basis of the systematic analysis of the legal positions of the Constitutional Court of the Russian Federation, the author comes to the conclusion about the necessity of surveying of all available to the Russian authorities’ funds to maintain a cohesive European (Convention) and national (constitutional) legal orders. Derogation from the legal obligation of the ECtHR judgments can be permissible in exceptional cases only and may be dictated only by the aims of protection of the state sovereignty and the supremacy of the Constitution of the Russian Federation.

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