Olga Valueva [mailto:[log in to unmask]]
Konstitutsionnoe Obozrenie
Dear Readers,
Institute for Law and Public Policy is glad to inform you that the
issue ¹ 1 (58) of the Russian language journal "Sravnitelnoe
Konstitutsionnoe Obozrenie" will appear on the 10 January. 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 (58)
Special Reports
Yuri Baturin
Constitution as Insignia and a Symbol of Legal Order
In this article the author ponders over the symbolic effect of the
constitution. He analyses the role that a space shot of the
constitution might play for the state. The author reviews different
symbols of state authority and concludes that the text of the
constitution shipped into the space can symbolically demonstrate the
“space power” of the state and become a sign of the legal order.
Yang Xinyu, Van Bosin
Overall Cognition of the Rule of Law and Constitutional Governance:
Civilization Approach
At the present time the society of China set a course for reception
such Western values as constitutionalism, rule of law, pluralism.
However, implementation of these values in Chinese society faced
historical, religious and other cultural factors: the author states
that traditional culture and ethical base of China are not ready to
understand and accept these ideas. The author analyzes the history of
the constitutionalism in China and weighs perspectives of its
development in this country.
Nikolay Mironov
Peculiarities of the Constitutional System of Argentina After the
Democratic Transition and Reform of 1994
Argentine has a rich constitutional history. The biggest part of this
history this country substantively altered, the Constitution of 1853
has been amended five times. The article examines special features of
constitutional system of Argentine after reform of 1994, including
mechanisms for protection of human rights, regulation of political
parties’ activity, electoral law, federative, judiciary.
Alexey Avtonomov
Changes in Legal Status of Foreigners in Iceland
In the meantime issues of status of foreign citizens in the legal
systems of different countries became on of the most current and
discussable among jurists. In the present article the author describes
solutions for this problems applied in Iceland. The article provides
comprehensive analysis of the most recent changes in the legal
framework of status of the foreigners, statistical data on the number
of foreign citizens on the territory of Iceland. The author likewise
tells about solving different problems caused by cultural and
religious diversities between citizens of Iceland and foreigners.
Feature: Russia in Search for the Administrative Justice
Elena Abrosimova, Donata Maccelli, Alexander Sungurov, Tatyana
Vinogradova
Mechanism of Control Over Public Administration in the European States
Appeal of Illegal Acts of Executive Authorities in Russian Federation
The article focuses on the analysis of the existing forms of appealing
against unlawful actions of executive bodies in the Russian
Federation, such as intradepartmental, extradepartmental and judicial
forms. The author believes that judicial system, which is the most
effective form of protecting violated rights, still has several
drawbacks that can be corrected by creating specialized administrative
courts. The conclusion is drawn that it is possible to increase the
effectiveness of the control system over the activities of executive
bodies only by systematic, complex reformation of this system,
concentrating on providing different, particularly specialized, forms
of protecting violated rights and guaranteeing freedom of choosing any
form of rights protection depending on specific circumstances.
Forum: Common Legal Space in Europe
Luzius Wildhaber
The Relationship Between the European Court of Human Rights and
Domestic Courts
This article is devoted to an overview of the activity of the European
Court of Human Rights; analysis of the influence of the European
Court’s decisions on national legal systems and of the relations
between law and politics from the point of view of the European Court.
The author presents several arguments why the ECHR is regarded as a
politically motivated institution and proves them wrong. He stresses
the idea that it is impossible for the European Court to implement the
standards of human rights protection without the support of national
courts.
Wojciech Sadurski
Protection of Minority Rights in Central and Eastern Europe: the Role
of Constitutional Courts and of the Accession to the EU
In this article the author describes the ways of solving the main
problem of implementing the robust and restrained policy of the
promotion of minority rights in the countries of Eastern and Central
Europe (CEE). He discusses the effectiveness of the implantation of
the European norms that secure the minority rights within the CEE
states, and analyses the reason why the CEE states have been
relatively reluctant to emulate these norms in their legal and
political orders. The author focuses on such issues as the existing
models of constitutional regulation of minority rights in different
countries of this region and the real situation with the restrictive
interpretation and circumspective implementation of these declaratory
provisions by the national constitutional courts.
Michel Rosenfeld, Andras Sajo
Spreading Liberal Constitutionalism: an Inquiry Into the Fate of Free
Speech Rights in New Democracies
In the process of transition of states from authoritarianism to
constitutional democracy a significant role was played by
transplantation of liberal constitutional provisions. Is the mere
importation of such norms sufficient to pave the way for liberal
constitutionalism? Or must certain preconditions prevail, or develop
subsequently, for transplantation to succeed? Can importation of
liberal constitutional norms have a significant impact notwithstanding
the concurrent importation of non-liberal constitutional norms? The
article is an attempt to answer these questions. The author focused
his attention on the practice of realization of freedom of speech in
Hungary, Germany and USA.
Otto Pfersmann
Techniques of Limitation of Legislative Competencies Through
Adjunctive Concepts (Reasonableness and Proportionality) in
Constitutional Adjudication
Constitutional Courts tend to review legislative provisions not only
with respect to explicit constitutional requirements, but with respect
to normative standards which are claimed to be present in the
constitution as a whole or which have to be, or so it is purported,
seen as inherently present in it without explicit textual statement.
“Reasonableness” and “proportionality” are probably the most prominent
such principles. The author attempts to show that these constructions
aim at restricting legislative competence more than the constitution
itself sets the limits of competence and are thus examples of
violations of the constitution by those in charge of being its
guardian. Second, I shall try to show that these strategies tend to
aggravate structural complexities in modern legal systems which modern
constitutionalism tried precisely to restrict. On the pretext of
strengthening the Rule of Law, they induce a weakening of the Rule of
Law.
Council of Europe
Philip Leach
The Effectiveness of the Committee of Ministers in Supervising the
Enforcement of the European Court of Human Rights
Liability for the failure of execution of acts of the European Court
of human rights lies on the members of the Council of Europe. The
Court itself was considered liable for the lack of clarity in some of
its judgments. Responsibility was also laid upon the Committee of
Ministers, which is responsible for supervising the execution of the
judgments of The European Court. The author of the article examines
the role of the Committee of Ministers in the process of execution of
the Court’s judgments, its functions and institutional form of
exerting pressure on the member – states.
Terrorism and Democracy
Michel Rosenfeld
Judicial Balancing in Times of Stress: Comparing the American, British
and Israeli Approaches to the War on Terror
In the process of transition of states from authoritarianism to
constitutional democracy a significant role was played by
transplantation of liberal constitutional provisions. Is the mere
importation of such norms sufficient to pave the way for liberal
constitutionalism? Or must certain preconditions prevail, or develop
subsequently, for transplantation to succeed? Can importation of
liberal constitutional norms have a significant impact notwithstanding
the concurrent importation of non-liberal constitutional norms? The
article is an attempt to answer these questions. The author focused
his attention on the practice of realization of freedom of speech in
Hungary, Germany and USA.
Federalism
Alexander Blankenagel
In search for the Disappeared Exclusive Powers of the Subjects of the
Russian Federation
Notwithstanding Russia is a federative country, the author states that
a lot of problems of decentralization have not been solved yet. One of
the key questions in this light is the question of exclusive
competence of subjects of Russian Federation. The author
comprehensively analyzes provisions of the Constitution and federal
legislation in order to answer the most crucial question, weather the
Constitution does not confer nay powers on the subjects of the Russian
Federation.
Victor Cherepanov
Delimit or Delegate?
This article is devoted to necessity of correction of the federative
reform in relation to such notions as “delimitation of competencies”
and “delegating of competencies”. The author point by point examines
the institution of delimitation of powers between authorities of the
Russian Federation and authorities of subjects of the Russian
Federation, notices problems of this institution and solutions of
these problems.
In the Russian Constitutional Court: Decisions and Comments
Alexander Vereshchagin
“Fee of Success” Before the Constitutional Justice
This article is devoted to the analysis of the decision of the
Constitutional Court of Russia rendered on January 23, 2007, where the
Court admitted that at present time a remedy cannot be given to the
term that sets out a contingent fee for lawyers. The author reviews
advantages and disadvantages of a contingent fee and gives
consideration to the motivation and peculiarities of this decision.
Persona Grata
Andrey Medushevsky
P.I. Novgorodtsev as a Theorist of Democracy and Authoritarism
In this issue we are glad to present You the article devoted to
outstanding scholar of XIX – XX century, professor P. Nogorodtsev,
liberal civic leader, legal philosopher, member of the First Sate
Duma. Professor Novgorodtsev substantively influenced legal philosophy
of Russia in the beginning of XX century, participated in development
of such trends as theory of revival of natural law, theory of
revolutionary and counter-revolutionary dictatorship. The article also
describes political activity of P. Nogorodtsev, including his
participation in constitutional movement.
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