From: Olga Zyukova [mailto:[log in to unmask]]
Dear Readers,
Institute for Law and Public Policy is glad to inform you that the
issue ¹1 (54) of the Russian language journal "Sravnitelnoe
Konstitutsionnoe Obozrenie" will appear on the 17 April. 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
Here is the content of the issue with short summaries.
Sravnitelnoe Konstitutsionnoe Obozrenie
2006. No.1 (54)
Special Reports
Andrey Medushevsky
Constitutional Crisis in Kirghizia
The author comprehensively analyzes the constitutional crisis which
resulted from the governmental overthrow in Kirghizia on 24 March
2005. The article looks in detail at such matters as the causes of the
crisis, its content and phases of development, and possible ways of
its resolution. The author also considers problems arising from the
opposition’s idea of radical constitutional reform since it came to
power.
Mark Elliott
United Kingdom: Parliamentary Sovereignty under Pressure
The article is devoted to the challenge presented by European Union
laws to the doctrine of parliamentary sovereignty, in their
modification of the traditional doctrine of sovereignty and in the
effect of human rights and devolution on the traditional theory of
legislative power.
Kim Lane Scheppele
“We Forgot About the Ditches”: Russian Constitutional Impatience and
the Challenge of Terrorism
This is the first part of an article analyzing correlations between
the problem of terrorism and the development of Russian
constitutionalism. This part analyzes Alexander II’s liberal reforms,
with particular attention to the creation of independent courts and to
the reasons – terrorism most of all –underlying constitutional
counter-reforms. The second part of the article will be published in
the next issue of the Journal.
Alexander Vashkevich
Development of the Ombudsman Institution in the Republic of Poland
The article provides comprehensive research into the institution of
Ombudsman in the Polish Republic, including the process of its
establishment and its importance in protecting human rights and in the
overall development of the Polish legal system. The author reviews the
constitutional laws defining the status of the Ombudsman and his
functions, powers, and procedures.
Feature:
Implementation of the European Court’s Rulings
Valery Zorkin
The Role of the Constitutional Court of the Russian Federation in
Realization of the European Convention on Human Rights
The author analyses the experience of implementation of the European
Convention on Human Rights and Basic Freedoms by the Russian
Constitutional Court. He examines several powers of the Court which
have enabled implementation of the Convention and of case law of the
European Court in the Russian legal system. The article reviews
decisions of the Constitutional Court which have been significant in
securing the interaction of the national and international legal
systems.
Gertrude Lubbe-Wolff
European Court of Human Rights and National Jurisdiction - the Gurgulu
Case
The author examines conflicts between national and international
jurisdiction which arise in applying the European Convention on Human
Rights. This is an analysis of the decision of the Federal
Constitutional Court of Germany in the Gorgulu case, which defined the
status of international law in the German legal system and the
procedure for applying international legal rules in German domestic
courts.
Lech Garlicki
Cooperation and Conflict: Some Observations on Relations between the
European Court of Human Rights and National Constitutional Courts
The article analyzes the role of the European Court’s case law in
implementation of the European Convention and in its application by
national courts. The author examines in detail specific cases where
the positions of the European Court and national courts coincided and
ones where they conflicted. He also looks at issues of the
implementation of the European Court’s decisions by national
governments.
Evgeni Tanchev
Contemporary Constitutional Pluralism and Implementation of European
Court of Human Rights Rulings by the Bulgarian Constitutional Court
The article evaluates the practice and decisions of the European Court
of Human Rights in light of currently developing legal and
constitutional pluralism. It looks at the interaction of international
law, European Community law, and the law of European states. In
particular it examines several decisions of the Bulgarian
Constitutional Court which demonstrate the specificity of applying
norms of the European Court of Human Rights.
Jasna Omejec
Implementation of the Rulings of the European Court of Human Rights in
the Practice of the Constitutional Court of the Republic of Croatia
This article discusses the implementation of judgments of the European
Court by the Croatian Constitutional Court in the process of abstract
normative control, acceptance of the legal opinions of the European
Court in interpreting specific legal principles and institutions,
application of the judgments and decisions of the European Court in
proceedings for the protection of individual human rights, and basic
problems arising in the Croatian Constitutional Court’s application of
the case law of the European Court.
Renata Uitz
Taking Courts to Court: The Story of Compliance with Strasbourg
Jurisprudence in Hungary
To understand implementation of or compliance with Strasbourg
jurisprudence in the broad sense, this article looks into how various
institutions and procedures established in the Hungarian constitution
perform when it comes to developing or refining legal rules concerning
(and very often limiting) human rights. Such an inquiry does not stop
at examining whether Hungary is complying with judgments rendered
against it in Strasbourg, nor is it limited to seeing how the
Hungarian Constitutional Court understands the European Court’s
pronouncements in its own jurisprudence. Rather, the present paper is
devoted to understanding the role which the Hungarian Constitutional
Court plays in Strasbourg-proofing rights protection in the Hungarian
legal system in light of rights violations identified by the European
Court.
Nikolay Vitruk
Several Specificities of the Application of Judgments of the European
Court of Human Rights in the Practice of the Constitutional Court of
the Russian Federation and Other Courts
The article examines the European Convention on Human Rights and the
legal positions of the European Court of Human Rights, the
Convention’s place and force in the legal system of Russia, and its
role in the practice of the Russian Constitutional Court and other
courts. The author attempts to solve both legal and technical problems
in the application of the European Court’s case law.
Mikhail Lobov
Direct Application of the European Court of Human Rights’ Rulings in
National Law: A Comparative Review
The author examines the direct application of the European Convention
on Human Rights, including problems of its application by a national
judiciary. The article provides generalizing statements concerning
states’ acceptance of the principle of direct application, as well as
the forms, dimensions, systemization, and limits of the direct
application of judgments of the European Court of Human Rights by EC
Member States.
Law and Information Technologies
Victor Monakhov
Freedom of Mass Media On-line: Problems of Legal Implementation
The development and implementation of new information technologies and
a new conception of mass media predetermine the appearance of
diversity in regulating informational relations. This leads to the
necessity of thorough research for adequate legal regulation in this
area, including a comparative analysis of new methods of regulation of
mass media in foreign countries.
Andrey Medushevsky
Law and New Technologies
This article is devoted to a detailed analysis of normative regulation
of the Internet. The author considers not only current legal acts but
also recognizes problems in the regulation and application of the
Internet. The current situation is presented by revealing voids in the
legal system and conflicts in law-making practice.
Peter Roudik
Digital Legal Research: New Russian Media for the Electronic Age
This article evaluates Russian legal information available online in
order to familiarize readers with the existing resources run by
government agencies and commercial firms. A number of databases are
included in the evaluation. Some of the criteria used to assess each
resorce include target audience, type of materials available for
retrieval, authenticity of the documents, balance between branches of
law, and scale of legal analysis provided.
Point of View:
Executive Power for Federation
Ivan Leksin
Constitutional Meaning of the Term “Single System of Executive Power”
This article seeks to reveal the constitutional meaning of the term
“unified system of executive authority”. The author makes a systemic
analysis of the relevant norms of the Russian Constitution and
examines the degree of structural unity of the executive branch in the
Russian Federation in the context of principles of the unity of public
authority in general. He approaches the problem not only from the
position of an analysis of provisions of the Russian Constitution but
also in light of federal and regional legislation - including
budgetary legislation - reasoning from the principle of delimitation
of authorities’ jurisdiction and reflecting the rulings of the Russian
Constitutional Court.
Alexander Blankenagel
The Concept of A Single Unified System of Executive Power in Part 2,
Article 77 of the Constitution of the Russian Federation – What Kind
of System, and Where is the Unity?
The present article is a consistent systematic and institutional
analysis of the problem of unity of the system of executive
authorities in Russia. Relying on the principles of federative state
doctrines and on analyses of the norms of the Russian Constitution,
the author examines a number of problematic aspects of Russian
federalism, pointing out the most currently urgent structural and
administrative contradictions and proposing possible ways of solving
these conflicts.
Yury Tikhomirov
Administrative Reform’s Impact on Federative Relations
The article provides analysis of federative relations in light of
recent administrative reforms in Russia. It examines problems of
redistribution of functions between federal authorities and those of
subjects of the Russian Federation, the development of relations
between governmental authorities and business, and the development of
self-regulating organizations. It also provides a list of measures to
be taken for raising the efficiency of executive power.
Constitutional Justice
Michel Troper
Realistic School of Interpretation
In this article the author examines the institution of legal
interpretation from the position of the realistic school – a variant
of legal positivism. The article comprehensively analyses the nature
of interpretation of law, together with the object and subject of this
activity. By means of realistic theory the author resolves several
contradictions faced by other theories including the “pure theory of
law” of Hans Kelsen.
Albie Sachs
Judicial Enforcement of Socio-Economic Rights: The Grooteboom Case
In terms of particular cases tried by Constitutional Court of the
Republic of South Africa, the author analyses problems concerned with
the realization and protection of socio-economic rights. The author
contends that the main question in this sphere is: Can social and
economic rights be regarded as fundamental rights enforceable directly
by the courts, and if so, how?
Angelika Nussberger
“The Strong State” as a Basic Idea of Russian Constitutional Justice
By an analysis of recent decisions of the Constitutional Court of the
Russian Federation, the author attempts to reveal basic trends
emerging in the Court’s practice. The article evaluates the
Constitutional Court’s decisions concerning aspects of constitutional
order including federalism, democracy, principles of the welfare
state, and freedom of speech.
In the Russian Constitutional Court:
Decisions & Comments
This issue contains analyses of five decisions of the Court concerning
the constitutionality of provisions of the federal laws “On Basic
Guarantees of Electoral Rights and the Right of Citizens of the
Russian Federation to Participate in a Referendum”, “On the Election
of Deputies of the State Duma of the Federal Assembly of the Russian
Federation”, “On Insolvency (Bankruptcy)”, “On the General Principles
of Organization of the Legislative (Representative) and Executive
Authorities of Subjects of the Russian Federation”, as well as the
Arbitrage Procedural Code and the Civil Procedural Code.
Review
Paul Berman
Power and the Idealists: Or, the Passion of Joschka Fischer, and its
Aftermath
(Softskull Press)
David Rieff
At the Point of a Gun: Democratic Dreams and Armed Intervention
(Simon & Schuster)
Reviewed by Stephen Holmes
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