From: Konstantin Ryabinin [mailto:[log in to unmask]]
Dear Readers,
Institute for Law and Public Policy is glad to inform you that the
issue ¹ 3 (60) of the Russian language journal "Sravnitelnoe
Konstitutsionnoe Obozrenie" will appear on the 26 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 2007. No. 3 (60)
Special reports
Free Speech and the Rights of Religion
Matthias Mahlmann
In this article the author contributes to the ongoing heated
discussion of the problem of correlation between freedom of speech and
religious freedom. The author conducts a detailed analysis of this
issue, reveals the main questionable points and gives examples of
controversial religious speeches. This article also contains
information on the regulation of religion-related speeches in German
criminal law and the analysis of the most important precedents. In the
conclusion of this both philosophical and legal work the author
introduces a number of principles that may be of great help in
regulating religion-related speech.
War against Terrorism: Reckless Steps of George Bush
Stephen Holmes
In this article Stephen Holmes attempts to invalidate the claims of
those who support U.S. President George W. Bush’s “War on Terror.”
Holmes asserts that Bush has used war to “legitimate an intolerance of
dissent that is constitutionally disfavored in normal times,” and has
done so to a degree higher than U.S. presidents of the past who faced
even greater threats to the American way of life. Holmes questions the
conventional paradigm of liberty versus security, and posits his own
balance: one of public liberty versus private. The text calls for an
increase in executive transparency in order to correct the current
imbalance with the judicial and legislative branches.
United Kingdom
Bicameralism, Sovereignty, and the Unwritten Constitution
Mark Elliott
This article concerns the decision in October 2005 of the United
Kingdom’s highest court — the Appellate Committee of the House of
Lords — in the case of R (Jackson) v. Attorney-General. The point
directly at issue was the validity of the Hunting Act 2004, which,
with some exceptions, makes it an offense in England and Wales to hunt
a wild mammal with a dog. For reasons that will be explained below,
determining the validity of that legislation required the court to
confront major constitutional issues concerning the respective powers
of the constituent elements of the U.K. Parliament, which, in turn,
raised questions about the extent to which bicameralism is a secure
feature of the U.K.’s constitutional arrangements.
Feature: Democratic Elections Today
Illusion of Strengthening the Right-Wing Ideology in France
Etienne Schweisguth
Presidential elections of 2007 proved the concept that the scale
“right-wing – left-wing” has two dimensions. The split of viewpoints
in the sphere of cultural liberalism, especially concerning the
questions of security and immigration, has become extremely important
and has turned into one of the crucial criteria, just as the attitude
to economic problems. The final result of the elections, as it
appears, can be explained by the success of Nikolas Sarkozi’s
strategy, which aimed at reorganization of the right-wing electorate,
and not by the controversial hypothesis on a supposedly long-term
shift of public opinion towards the right-wing ideology.
Political Parties in Great Britain: «Crisis of Legitimacy» and
Electoral Process
Alexey Gromyko
Political parties play a significant role in ensuring political
representation and organizing electoral process. They involve citizens
in political process; become a link between civil society and public
authority. However, the current situation with political parties in
Great Britain causes some specialists’ apprehension: the phrase
“crisis of legitimacy” appears more and more often in regard to
political parties. The author of this article scrutinizes the problem
and its causes. He convincingly shows which problems are factitious
and which should be a matter of serious concern.
Myths of Election Campaigns: Comparative Analysis of Presidential
Elections in the USA and Ukraine
Elena Yatsunskaya
This article is devoted to the analysis of the so called “electoral
mythology”. Studying electoral mythology helps to conceive the
political process, especially the peculiarities of the influence of
political leaders and mass media on the democratic system. The author
characterizes types of myths used in election campaigns, reviews every
type with the help of practical examples of its application in the
course of presidential elections in the USA and Ukraine.
«Dead souls» of Russian Voters
Ivan Baranov
The article is devoted to the analysis of problems of voter
registration procedure in the Russian Federation, which become more
urgent on the threshold of the elections to the State Duma and
President elections. The author combines the analysis of this stage of
electoral process with the review of Russian electoral policy.
Council of Europe
Introduction
Daniele Levy-Puech
Criminal aspects of trafficking in human beings
Carmen Prior
In this article the problem of human trafficking is reviewed in the
context of criminal liability. In the first part of the article the
author concentrates on analyzing provisions of Council of Europe
Convention on action against trafficking in human beings, and
scrutinizes various legal instruments set forth in the Convention that
can be used to prevent such crimes. In the second part the author
describes Austrian experience of ratification of the Convention. The
reader can find the analysis of changes in criminal legislation caused
by the ratification, as well as criminal procedure aspects of bringing
to justice for human trafficking.
Prevention of Trafficking in Human Beings
Klara Skrivankova
In this article the author is trying to answer the question, what
methods can be used to prevent crimes that involve trafficking in
persons. The author reviews the legal basis for the prevention of such
crimes, concepts and strategy of countering human traffic. The article
also contains examples of successful practice of such measures, among
which the main role is played by measures against the demand for the
trafficking in persons and border control.
Practice of Preventing Trafficking in Human Beings in Russia
Marianna Kochubey
The author of the article reviews Russian practice of human traffic
prevention. In this article the reader can find the statistics which
shows the growth of the amount of such crimes, committed in the
Russian Federation. The author also describes the most general
characteristics of these crimes, their types and practice of
preventing such crimes in Russia and the CIS.
Measures to Protect and Promote the Rights of Victims of Trafficking
in Human Beings
Gulnara Shahinian
The problem of human trafficking is not limited to the questions of
fighting and preventing such crimes. Another important problem is
protecting the rights of the victims. This issue is analyzed in the
article. The author scrutinizes the provisions of Council of Europe
Convention on action against trafficking in human beings and gives
practical examples which illustrate how the rights of the victims can
be protected.
Liability for Trafficking in Human Beings under Russian Criminal Law
Jury Pudovochkin
In this article the author reviews criminal aspects of human
trafficking from the point of view of Russian legislation. The author
analyzes the development of the institute of liability for human
trafficking, examines the notion, several aspects of this crime, and
the differentiation of liability for traffic in persons. Such issues
as penalties and relief of liability for this crime are in the scope
of the author’s attention. The article contains a lot of statistics,
which can help the reader understand the approach of Russian lawmakers
to the regulation of liability for human trafficking.
Point of View
Sovereign Democracy – a Historical Imperative of Russian Statehood
Development
Armen Dzhagaryan
The aim of the author of this article is to analyze such a phenomenon
as sovereign democracy, to define its constitutional content, its
normative characteristics in the system of existing constitutional
regulation in the Russian Federation. The author consequently reviews
different aspects of this phenomenon and shows how sovereign democracy
expresses itself on the levels of individual constitutional status and
the constitutional status of the nation.
Sovereignty and Democracy: Constructions and Contradictions
Richard Sakwa
Continuing the discussion about sovereign democracy author analyzing
of the notion “sovereignty” and different points of view on
conceptions of the democracy. Author also analyzes political situation
in Russia and meaning of the conception of sovereign democracy in
nowadays. In this analyze we can find ambiguous attitude of the author
to the using of this conception by the government and political
community.
Judicial Power
Courts and Marginalized Groups: Perspectives from Continental Europe
Carlo Guarnieri
Until mid-twentieth century, Continental European judiciaries were
considered integral with the established order. Today, the situation
has changed: the subordination of the judge to political majorities is
declining. Judicial review of legislation has been introduced, and
judicial independence strengthened. These institutional changes have
supported the development of judicial activism. Organized judicial
groups have emerged — especially in France, Italy, and Spain —
advocating a progressive jurisprudence and developing policies aiming
at defending minorities and marginalized groups. The judiciary,
traditionally considered a conservative organization, now seems to be
willing to carry out progressive policies.
Independence of Judges and Management Process in Judicial System
Inga Mikhailovskaya
In this article the author deals with a topical problem of
independence of judges from an interesting aspect, namely from the
point of view of effectiveness of management process in the judicial
system. The author consequently reviews the mechanisms of internal
management of the judicial system, contemplates the extent to which
they contribute to or impede the process of establishing an
independent judicial system. It is remarkable that these
considerations are proved by sociological and statistics research,
which, by all means, makes the article even more interesting.
Post-Soviet Eurasia: Political Institutions
Articulating the Claims and the Problem of Institutionalization of
Feedback in Contemporary Russia
Yaroslav Startsev
The article is devoted to a poorly explored theme –
institutionalization of feedback in Russian political system. The
author makes an attempt of comprehensive analysis of the channels of
the interaction between authority institutions and society, not
limiting the scope of his study to the electoral system and lobbyism.
The author explores dynamics of improvement of institutions of
feedback, their influence on political situation in the country and
perspectives of their development.
Quality of Democracy: Problem of Control over Bureaucracy
Alexander Doroshenko
Some American scholars believe that during the XX century bureaucracy
has turned into an independent branch of state power, and its
influence on the political system has grown tremendously. In relation
to this point, control over bureaucracy, forms and methods of such
control, its importance to the political system and foreign experience
have become topical issues. In this article the author reviews the
stated questions and evaluates the role of each problem in the process
of democratization of Russia.
Constitutional Justice
Regional Constitutional Justice in the Russian Federation: State of
Affairs and Ways of Development
Vladimir Kryazhkov
In this article the author reviews the problem of regional
constitutional justice, rarely discussed in current juridical
literature. He consecutively analyzes the role of constitutional
justice in the Russian Federation, the process of its development, and
the practice of its functioning. However, the author doesn’t confine
his article only to the statement of facts, he scrutinizes the
problems, that occur in the course of forming constitutional
(statutory) courts of the subjects of the Russian Federation, and
suggests ways of developing regional constitutional justice.
Interpreting Bills of Rights: The Value of a Comparative Approach
Jack Tsen-Ta Lee
In certain jurisdictions, among them Malaysia, Singapore, and the
United States, the practice of consulting comparative legal materials
in interpreting domestic bills of rights has been criticized as
illegitimate. This article examines four main concerns, such as the
texts of bills of rights; national identity; different domestic
conditions; and certain practical concerns. The article concludes
that, notwithstanding these concerns, there are sound justifications
for courts to take a comparative approach to the interpretation of
bills of rights and substantial benefits to be derived from such an
approach.
In the Russian Constitutional Court: Decisions & Comments
Review of Decisions
Nikolay Mironov
Alexandra Troitskaya
The Right of Third Parties to Contest the Decision of Court of
Arbitration on the Ground of Lack of Jurisdiction
Tatyana Neshataeva
The author of the article reviews the problem of protecting the rights
of third parties that do not participate in legal proceedings in the
court of arbitration. The author gives the analysis of numerous legal
cases, where this problem is addressed. The starting point for this
discussion is the decision of the Constitutional Court of the Russian
Federation, where the practice of the European Court of Human Rights
is reflected, and the principle of universal judicial protection is
confirmed.
Reviews
The Era of Judicial Tyranny
Review of the Book
Aharon Barak, The Judge in A Democracy
(Princeton: Princeton University Press, 2006)
Vasiliy Lukashevich
Intellectual Collection
Book Review
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