Dear Readers,

Institute for Law and Public Policy is glad to inform you that on January 
15, 2005 the issue # 4 (49) of the Russian language journal "Sravnitel'noe 
Konstitutsionnoe Obozrenie" will appear. Our journal has been published in 
Russia since 1993 ("Konstitutsionnoe Pravo: Vostochnoevropeiskoe Obozrenie" 
till 2003) and among its readers are justices of constitutional courts (and 
another high courts), comparative constitutional law experts, researchers, 
politicians from more than 30 countries. The full infomation about journal, 
another publications and activities of the Institute is available at our 
website: http//www.ilpp.ru

Sravnitel'noe Konstitutsionnoe Obozrenie
2004. No.4

Summaries

Special Reports

Tatyana Pryakhina
Methodological Issues in the Development of Russian Constitutional Doctrine

Constitutional doctrine is both a scientific theory and an unconventional 
source of law. Seen from both sides, the author discusses methodological 
challenges in the development of contemporary constitutional doctrine. 
Building a constitutional model should underlie this process. The result 
would be a more flexible, inclusive framework that can provide stability and 
suggest ways to bridge conflicts.

Aleksey Starovoitov
Consistency in Law­making Activity: Factors, Tendencies and Problems

The author describes the planning, forecasting and programming of 
legislative activity in developed nations, each with a different form of 
government and legal code. Stages of development and problems with planning 
or forecasting often characterize transitional economies. The author 
suggests ways to improve long­term forecasting by introducing new scientific 
methods. The goal is to make the different stages of development consistent 
with political contexts and financial resources.

Aleksey Avtonomov
Consensual Integration and the Essence of Contemporary Federalism

There are two opposing trends in the current world context. One is the 
formation of new federations and the other is their dissolution. This 
simultaneity of events can be traced back to the ideology that underlies 
contemporary federalism. The author discusses the relation between 
federalism and democracy, as well as two determinant factors: the role of 
economic conditions and their impact on collectivist dynamics. The article 
demonstrates how real federalism is possible (and efficient) provided that 
social conditions are in place for the integration of politically and 
economically active groups.

Thomas Remington
Democratization, Separation of Powers and State Capacity in Russia

To what extent can Russian legislators control the executive bureaucracy? 
Does legislation passed in parliament clash with presidential decrees or 
does it tend to complement it? How do the legislative and executive branches 
interact when they draw up the government budget? By using examples from 
contemporary Russia, the author looks at this type of issues.

Nikolay Mironov
Institutionalization of the Political Opposition

The author examines the parliamentary opposition in Russia. In 2004, the 
State Duma (Lower House of parliament) ceased to honor a federal law 
granting legal rights to opposition activities. This was in response to 
President Putin’s personal rejection of the law. The author discusses the 
basis for a new draft law governing the legal status of opposition groups in 
Russia. The adoption of the draft law would help institutionalize the 
political opposition in parliament. According to the author, this type of 
legislation is one of the pillars of rule of law in modern democratic 
states.

Sofia Simonian
Procedural Guarantees for Citizens Requiring Psychiatric Assistance

The paper looks at the novelties in Chapter 35 of the Russian Federation’s 
Code of Civil Procedure. This chapter establishes the procedures to be 
followed in cases requiring psychiatric hospitalization, as well as 
obligatory psychiatric examinations. Such provisions did not exist in the 
previous Code of Civil Procedure. The rules regarding forced psychiatric 
care were established in “On the psychiatric assistance and guarantees of 
civilian rights at the time of their administration”, a law approved on July 
2, 1992. The author alludes to contradictions between statements in this Law 
and the norms in Chapter 35 of the new code. The issue of legal nature in 
such cases is also considered.

Feature:
The Right to Euthanasia

Renata Uitz
Facing the Unexpected On the Margins of the Hungarian Constitutional Court 
Decision on Euthanasia

In 2003, the Constitutional Court handed down its judgment on 
physician­assisted suicide (euthanasia). A unanimous Court found that active 
euthanasia was not unconstitutional per se, but a divided Court upheld the 
rules limiting passive euthanasia. In light of high­profile international 
rulings, this article looks at new opportunities to reconsider the legal 
norms regulating physician­assisted suicide in Hungary.

Zoltan Szente
Interpretation of the Constitution: Ethic and Pragmatic Aspects. Comments on 
the Decision of the Hungarian Constitutional Court
Regarding Euthanasia

This analysis does not discuss so much the moral aspects surrounding 
euthanasia as much as the procedural aspects in the Hungarian Constitutional 
Court. Did the Court act rightly and consistently? Can its interpretive 
methods be justified? The scrutiny extends to constitutional doctrines 
applied by the Court, with special attention devoted to the right of human 
dignity. Also included are issues such as self­determination of life and the 
proportionality­necessity test.

Methodology of Comparative Constitutionalism

Helmuth Schulze­Fielitz
Comparative Constitutional Law: Is It a One­way Street? The Principle of 
Dignity in Biomedical Research

According to the author, Russian constitutional law lags behind private 
practice in its use of comparative methodology. The article discusses some 
reasons for this phenomenon in an attempt to encourage the use of a 
comparative approach to issues of public and constitutional law. Cases of 
biomedical ethics in Germany serve to illustrate the author’s position.

Gunther Frankenberg
Critical Comparison: an Attempt to Enliven Comparative Law

The author offers an overview of comparative legal studies to examine 
whether they are relevant to the aims stated by “comparativists”. To this 
end he looks at the two main approaches: “comparison­plus” and comparative 
functiona­lism. He classifies the official positions into ideal types and 
paradigms. The author casts doubts about the legitimacy of objects in 
comparative legal research. By criticizing the attitude of 
comparativists­functionalists, he proposes a new way of reaching objectivity 
in comparative studies. The new approach involves a more critical 
understanding of scientific issues.

Council of Europe
Irina Yatsenko, Vadim Pak
Jurisprudence of the European Court of Human Rights Concerning Fiscal 
Disputes

The article provides an insight into the practice of the European Court of 
Human Rights in the field of taxation. Despite its restrained competence, 
the Court is empowered to carry out both substantive and procedural review 
of the State fiscal actions. The authors summarize the exact meaning of the 
Convention standards applied by the Court in the sphere, taking particular 
account of the latest trends of the Court’s case­law.

Judicial Power in Russia

Vladimir Pastukhov
The Russian Justice: “Separation from the Power” Basic Directions to 
Overcome the Crisis of the Judicial System

The article demonstrates that the judicial system in Russia still requires a 
full­scale reformation, which should include a comprehensive revision of the 
procedural codes currently in force, performed not only by the judges 
themselves. The author figures out several specific issues which determine 
the inefficiency and corruption of the Russian jurisprudence. This detailed 
elaboration of the problems of the judicial system allows him to suggest 
practical ways to their solving.

Tamara Morschakova
The Constitutional Protection of the Rights and Freedoms of Citizens by 
Courts in the Russian Federation

The author suggests a wide interpretation of the term “the constitutional 
protection”. She includes into the latter the protection of rights not 
explicitly listed in the Constitution, in particular, those established by 
supranational acts. The Constitutional Court should become a custodian of 
the international legal standard concerning human rights and freedoms. The 
paper discusses also the questions related to involving the courts of all 
levels into the constitutional protection and to the wide interpretation of 
the means of this protection.

Tatyana Neshataeva
Court and Protection of the Citizens’ Rights and Freedoms

The paper is devoted to a discussion of necessity of changes in the judicial 
system of contemporary Russia. These chan­ges should aim at providing 
adequate judicial defense of human rights and freedoms. The author analyzes 
this question from the point of view the international law. In particular, 
the drawbacks of the judicial system are considered, which were pointed out 
in the practice of the European Court on Human Rights. Among them there 
present serious shortcomings of procedural mechanisms of justice: violation 
of the principle of equality of judges, phenomena of corporativeness and 
conservatism (keeping the habits of the previous profession by a judge).

Grigory Yermoshin
Judicial Community in Russia in the Context of Contemporary Reality

The subject of this paper is the legal state and the role of the judicial 
community in contemporary Russia. Two basic functions of the bodies of the 
judicial community are highlighted, both directly related to the 
organization and activity of the judicial power: participation in solving 
the problems related to its financing and solving the staff­related 
questions. The status of the qualifying boards of judges and other bodies of 
the judicial community is discussed and analyzed on the basis of practical 
examples.

Elena Abrosimova
Self­regulation of the Judicial Power: the Basics, the Content, the Trends

Though the principle of the separation of powers is widely acknowledged, 
judicial power institutes often law­making. The author considers this 
phenomenon taking the RF as an example. She discusses the rulings of the 
Supreme Court, the Higher Arbitration Court and the Constitutional Court of 
the RF (which became the real sources of law) as well as the decisions of 
the managing institutes and other mechanisms by which judicial power 
participates in the legislative process – the adoption of the norms of 
judicial order, the acts of the bodies of the judicial community (in 
particular, those related to the qualification of judges), the right to the 
legislative initiative. Application of the latter is subject to a critical 
discussion in the paper.

Russian Reforms and Consolidation of the Legislation

Andrey Medushevsky
Administrative Reform in Contemporary Russia

Administrative reform – is one of priorities for the transitional economics 
in Russia. The essence of reform is to construct the administrative 
mechanism and rational bureaucracy for the effective and transparent 
governance. Examining the legislative basis of reform, its stages and 
different strategies, the author demonstrates the contribution of a new 
legislation in terms of both institutions and administrative practices. He 
argues the contradiction between the role of the state in forming of market 
economy and the enforcement of the institution of private property from the 
one hand and the negative regulatory role of public organs in restraining of 
private interest and the creation of administrative barriers for business 
from the other. This analysis shows the importance of separation of 
different institutional functions in order to prevent over­centralization 
and stimulate the optimization of control. The implementation of a new 
legislation on admi­nistrative service reflected a structural conflict of 
interests between branches of government, central and regional bureaucracy, 
ruling elite and big business.

Irina Kalinina
State Liability for Caused Damage

The paper discusses some issues concerning the legal nature of state 
liability for caused damage, as well as judicial approaches (mainly of 
arbitrage courts) to some elements that constitute the state obligation to 
compensate the damage. The attention is paid to the interpretation of some 
of these elements in a light of constitutional nature of state liability: in 
particular, the author underlines the idea of strict liability, i.e. state 
liability somewhat more independent from fault and other subjective factors.

Oleg Mozgo
Development of the Antimonopoly Legislation in Russia

The paper considers basic trends in the development of the antimonopoly law 
in Russia in 2000–2004. After a brief review of the principal novelties in 
the Law “On the concurrence and the limitations of monopolistic activity on 
the goods market”, the author turns to the analysis of recent administrative 
practice of the Ministry of antimonopoly policy and to characteristics of 
the development of jurisprudence on the related cases. The issues of 
regulation of natural mono­polies and possible future developments of the 
antimonopoly law are also considered.

Constitutional Foundations of Criminal Procedure

Alla Vereschagina
The Constitutional Bases of the Criminal Procedure Legislation in Russia
(Several Aspects)

The author presents a critical analysis of the new code of Criminal 
Procedure of Russia from the point of view of the constitutional principles 
and provisions. Several aspects of external and internal independence of the 
judicial power are considered, both those which have found their place in 
the new code and those which await its further editions. Constitutional 
provisions determined the concept of the code; they influenced its 
structure, manner of exposition and appea­rance of some novelties. 
Simultaneously some old procedural institutes are still kept. This means 
that the document has a transitional nature and points to a necessity of its 
further development.

Peter Solomon
The Criminal Procedure Code of 2001: Will it Make Russian Justice More Fair?

This paper scrutinizes the UPK of 2001 and its initial implementation. Using 
official statistics and materials from the Monitoring project, it assesses 
the impact of the Code on the conduct of trials and pretrial investigations. 
Consideration is also given to the novel Monitoring project and its 
contribution to the Code’s implementation. The paper argues that while the 
Code made trials more adversarial, it failed to remove accusatorial bias 
from the pretrial phase.

Constitutional Review

Alexandra Troitskaya
The Constitutional Duty to Pay Taxes and Fees as Reflected in the Rulings of 
the Russian Constitutional Court

It is an important task to ensure a balance between opposite interests of 
the state and the taxpayer when the duty to pay taxes is established. The 
author analyses the practice of the Constitutional Court of the RF on the 
cases related to taxation. It is emphasized that the Court, when considering 
these cases, relies not only on the provisions of the corresponding article 
of the Constitution (Art.57), but, to a great extent, on the constitutional 
principles. In this way, the Court aspires to ensure the conformity of the 
tax system with the basic ideas of the Constitution.


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