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
