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EAST-WEST-RESEARCH  September 2006

EAST-WEST-RESEARCH September 2006

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Subject:

TOC: Sravnitelnoe Konstitutsionnoe Obozrenie № 3 (56)

From:

"Serguei Alex. Oushakine" <[log in to unmask]>

Reply-To:

Serguei Alex. Oushakine

Date:

Fri, 22 Sep 2006 10:37:36 -0400

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (280 lines)

Dear Readers,

Institute  for  Law  and  Public Policy is glad to inform you that the
issue   ¹  3  (56)  of  the  Russian  language  journal  "Sravnitelnoe
Konstitutsionnoe Obozrenie" will appear on the 15 October. 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. 3 (56)

Special Reports

Andrey Medushevsky
The Technologies of Constitutional Overturns

The  article  is devoted to an analysis of constitutional overturns in
the  modern  world.  It reveals the nature of constitutional overturns
which  is  based  on  their special technologies which combine law and
policy.  The  author  scrutinizes different methods of conducting such
overturns in order to describe the conflict between law and reality in
the most effective way.

Kim Lane Scheppele
«We  Forgot  About the Ditches»: Russian Constitutional Impatience and
the Challenge of Terrorism

We  would  like  to  bring  to  your  attention the second part of the
article examining correlation between the problem of terrorism and the
development  of  Russian  constitutionalism.  The  present part of the
article   provides   the   analysis  of  the  development  of  Russian
constitutionalism  in  post-Soviet  period  and proves the reliance of
liberal constitutional reforms on terrorism.

Vyacheslav Grishin
Constitutional Outlines of Local Government in Sweden

The  article  is  devoted to an analysis of constitutional outlines of
local  government  in  Sweden. The author comprehensively analyzes the
history   of   its  foundation  and  the  main  features  of  people’s
participation  in solving the local matters. The author also finds out
that  the  institution  of  local  government has an important role in
providing public services to the citizens of Sweden.

Ruslan Stefanchuk
The  Civil  Code  of Ukraine – the First Attempt of Systematization of
Legislation on Personal Non-property Rights in Eastern Europe

The  article  is  devoted to a survey of the guarantees of fundamental
human  rights  and  freedoms in civil legislation of Ukraine which the
author  considers  to  be  one  of  the  most liberal in former Soviet
republics.  In  the  article the author classifies and comprehensively
analyses  the meaning of personal non-property rights set forth in the
Civil Code of Ukraine.


Feature: Freedom of Speech and Religion

Anthony Lester
Free  Speech  and  Religion  -  the  Eternal  Conflict  in  the Age of
Selective Modernization

There  is an eternal conflict between freedom of speech and freedom of
religion.  The  right  to  express  ideas  may  lead  to spreading the
information  which  is  offensive  or disturbing for religious people.
Once  the  basic principles of free speech and freedom of religion are
accepted,  there  arise  some  difficult questions, which remain to be
answered  by  lawmakers,  courts  and  legal  scholars.  The author is
convinced  that according to international standards freedom of speech
can  be  suppressed  only  when  religious hatred constitutes imminent
incitement  to unlawful acts of discrimination, hostility or violence.
He  urges  to heed the advice of Soli Sorabjee that «we need more free
speech to combat bigotry and to promote tolerance».

Lech Garlicki
State Supervision over Religion: Conflicting Trends?
(Remarks  on  the  Recent  Case-law  on  Article  9  of  the  European
Convention of Human Rights)

In  this  article  the  author  examines  two  of the most interesting
aspects  of  freedom of religion and reviews the cases of the European
Court of Human Rights devoted to them. The first aspect relates to the
institutional dimension of religious freedoms; the other to the limits
of  public  manifestation of individual’s beliefs. The author develops
the  position  of the Court that it may be sometimes necessary for the
State  to  place  restrictions  on  freedom  of  religion  in order to
reconcile  the  interests  of  the  various  groups  and  ensure  that
everyone’s religious beliefs are respected. Thus, the author considers
different  models  of  the State relations with churches and religions
and  according  to  the  recent case-law analyzes the intensity of the
State supervision over religion.


Robert Post
Religion and Freedom of Speech: Portraits of Muhammad

In  this  article  the  author  is trying to find the answer to a very
difficult  question:  how  should  the  law mediate between freedom of
speech  and  the  demands  of  religious  sanctity?  He  analyzes  the
situation  that  was formed after the Danish newspaper Jyllands-Posten
had  solicited  and  published  twelve  cartoons depicting the prophet
Muhammad.  Robert  Post examines the correlation between such terms as
democracy  and  freedom of speech, legal censorship and suppression of
blasphemy,  democratic  legitimation and prevention of discrimination,
and as a result comes to a very interesting conclusion.

Andras Sajo
Danish  Cartoons  and  Cheese: A Study of Countervailing Duties in the
World Trade of Ideas

The  author  presents a description of the most complicated problem in
the modern world – the question of balancing between freedom of speech
and  the  necessity  of preventing religious scandals. The analysis is
based  on  the  example of publication of prophet Mohammed’s pictures.
The  author  points out the fact that due to the globalization process
the  concept  of  freedom  of speech and with it, the Western cultural
system  that  depends on it, may end up headed in a new direction that
is inauspicious for freedom.

Council of Europe

Tatyana Vasiljeva
Legal  Status  of  Nonresidents: Standards and Orienting Points of the
Council of Europe

One  of  the  manifestations  of  the  globalization  process  is  the
extension  of  the  sphere  of  international legal regulation and the
creation  of  universal  and  regional standards for the state policy.
These  standards  concern  questions  of  vital importance for all the
states  including  the legal status of nonresidents and the prevention
of  illegal  migration.  The author reviews legal practice of European
Commission and European Court of Human Rights and determines the legal
views  of the Council of Europe towards various aspects of immigration
policy  and  control.  The  author underlines and proves the idea that
these  regional standards have an increasing influence on the national
legislation and the case-law of the particular states.

Constitutional Basis of Tax Law

Valery Zorkin
Constitutional  Aspects  of  Tax Law in Russia and the Practice of the
Constitutional Court

The  author  presents  a  description of the tax regulation in Russia.
This article is a survey of different problems that exist in sphere of
taxation  and the role of the Constitutional Court practice that could
become   a  basis  of  taxation  improvement  and  perfection  of  the
state-taxpayers cooperation.

Rudolf Mellinghoff
Constitutional Aspects of Tax Law in Germany

This  article aims to examine the influence of the basic provisions of
constitutional  law  on  tax relations in Germany. The author observes
how  individual rights and freedoms proscribed by the Constitution are
applied  and  how  they restrict the legislator. The author thoroughly
analyzes the principle of equality in taxation and different levels of
its realization: from tax equity to the actual equality of tax burden.

Wilfried Wagner
Constitutional Aspects of Statute of Limitation in German Tax Law

The  article  is  devoted  to an analysis of one of the most important
legal  institutes  in  German tax law - the statute of limitation. The
author  examines  the  history  and  the  essence of this institution,
moments  of the beginning and expiration of the statute of limitation.
He  also  compares  the statute of limitation in tax law with the same
institution  in  civil law. The main part of the research is concerned
with the question of constitutional criteria for the limitation period
regulation  in  tax law. The author analyzes constitutional principles
of  such regulation and draws a conclusion about the existence of some
contradictions among these principles.

Nickolay Bondar
Taxes  as  a  Link  between Power and Freedom (Tax Law in the Light of
Constitutional Justice)

The aim of this article is to reveal the significance of the decisions
of the Constitutional Court of Russia in regulating tax relations that
have  become  the  basis of a large amount of complaints to the Court.
The author views the decisions of the Constitutional Court as a source
of  tax  law  of  the  highest  validity  and as an important means of
settling tax disputes.

Federalism

Hulio Pinel
Analysis  of  the  System  of  Sharing  Powers  and Competence between
Central  Authorities and Autonomous Communities in Spain in the Lights
of  Contemporary  Development  of  Federative Relations in the Russian
Federation

This article is devoted to an analysis of the system of sharing powers
and competences between the center and the regions, the main drawbacks
of  this system, determination of problems and possible solutions that
may  be of interest for a Russian reader. Likewise, the author reviews
the   relevant   history   and   compares   the   Spanish   system  of
decentralization  with  the  principles  and mechanisms of the federal
structure in the Russian Federation.

Jorge A. Schiavon
The  Central-local  Division  of  Power  in  the  Americas and Renewed
Mexican Federalism: Old Institutions, New Political Realities

This  article explores whether the central-local division of powers is
an  important  constitutional variable in the political systems of the
Americas.  It  develops a typology of different kinds of central-local
division  based  on  two specific characteristics differentiating them
(federal-unitary  and centralized-decentralized). It then constructs a
«veto  gates  and  players»  model  in  order  to  analyze  the causal
mechanism  through  which  the central-local division of power impacts
the  constitutional  systems.  The  author  analyzes  Mexican  federal
system,  arguing  that renewed Mexican federalism is a function of the
combination of old federal institutions, established in 1917, with the
new  political  distribution  of  power and decentralization after the
2000 democratic transition.

Constitutional Justice

Yasmin Dawood
Democracy,  Power,  and  the Supreme Court: Campaign Finance Reform in
Comparative Context

In  this article the author conducts a comparative analysis of the key
decisions  of  the  Supreme  Courts  of  the  United States and Canada
dealing  with  the  campaign  finance  reform.  The article shows that
judicial   review  raises  fundamental  and  complex  questions  about
democratic values, processes, and institutions. The author argues that
conflicts  over  campaign  finance  regulation  occur  because  of the
disputes  concerning the amount of state interference with this issue.
This  article  also  outlines a proposal for how courts should analyze
the  power  trade-offs among competing distributions of power that are
involved in the regulation of campaign finance.


In the Russian Constitutional Court:
Decisions & Comments

This   issue   contains   the  analysis  of  three  decisions  of  the
Constitutional  Court,  rendered  in  May  and June of 2006. The first
decision  concerned the minimal standards of guaranteeing the right to
available  and  free education. The second decision dealt with federal
laws,  which  have  abolished  the  right  to  free  privatization  of
habitation.  In  the  third decision the Constitutional Court examined
the  constitutionality  of  some  regulations of Federal Law «On Basic
Guarantees  of  Electoral  Rights  and  the  Right  of Citizens of the
Russian  Federation  to  Participate  in a Referendum». Also there are
Joseph  Middleton’s  and  Dmitry  Golovanov’s  expert  comments on the
Court’s decision on electoral rights.

Persona Grata

Andrey Medushevsky
Lev  I.  Petrazhitsky  and  the  Law Crisis in the Beginning of the XX
Century.

The   article   is   devoted  to  the  scientific  effort  of  Lev  I.
Petrazhitsky, a prominent figure in the disputes concerning the nature
of  law  in  the beginning of the XX century. The author describes the
main  role  of  his activity in creating an integral legal science and
his  progressive  ideas  that  are  still  relevant  and  can  help to
establish an effective and fair legal system.

Review


Henry Hale
Why Not Parties in Russia? Democracy, Federalism, and the State
(Cambridge, Cambridge University Press, 2006)

by John Reuter

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