From: Olga Valueva
Email: [log in to unmask]
Dear Readers,
Institute for Law and Public Policy is glad to inform you that on April
14, 2005 the issue # 1 (50) of the Russian language journal "Sravnitel'noe
Konstitutsionnoe Obozrenie" will appear. 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.
Sravnitel'noe Konstitutsionnoe Obozrenie
2005. No.1
Special Reports
Vadim Vinogradov
Immunities in the Constitutional Law
This article is devoted to the problem of constitutional immunities.
Austria, Brazil, Germany, Mexico, United States of America, Czech Republic,
Italy, France, Israel, Portugal, Russian Federation and other states are
taken as an example. It also contains description of immunities of heads of
states, deputies, judges and members of governments. The author analyzes
reasons for release from constitutional responsibility such as force majeur,
execution of an order of higher instance and so on.
Peter Leyland
Establishing a “Right to Know” in the UK and The Freedom of Information Act
2000: New Openness or Missed Opportunity?
This article provides a discussion of the issue of freedom of information
within the context of the contemporary UK constitution. It explains that the
environment of central and local government has been transformed in recent
years by information and communication technology, with every government
department, local authority and public bodies routinely publishing
information on dedicated websites. The article then provides a critical
evaluation of the main provisions of the Freedom of Information Act 2000
before ending with a brief discussion of the likely impact of the new Act in
the sphere of government and local government contracting with the private
sector.
Alexander Vashkevich
Legal Regulation of the Relationships between State and Confessions in
Belarus Republic (1919–2005)
The article is devoted to the new version of the Law on the Freedom of
Conscience and Religious Organizations adopted in November 2002 and it deals
with the first results of the laws implementation. The Agreement between
Belarusian Eharchate of the Russian Orthodox Church and Belarusian State is
analyzed. In addition, information on the current religious situation in
Belarus during last 15 years is included.
Feature
Democracy Today
Joseph Middleton
Legislative Regulation of Federal Elections in Russia and America: Some
Comparative Observations
The author was legal expert for the OSCE/ODIHR international observation
missions for the Russian State Duma elections of December 2003 and the
American presidential and congressional elections of November 2004. In this
article he draws on his experiences in both countries to reflect on
comparative approaches to the legal regulation of the electoral process,
with notable coherence in one country contrasting with a degree of chaos in
the other.
Mary Mendras
Russia and Ukraine at the Crossroads of Democracy
Causes of events connecting with the presidential elections in Ukraine are
very ambiguous and have been interpreted in many ways. For example, the
author of the article supposes that the main reason of such a situation was
Russian President V.Putin’s misinformation and overestimation of his own
authority. The article also raises a question of the responsibility of
Western States for such a situation.
Gregory Nemyria
New Ukraine, the European Union and Russia: New Start
The article describes the situation that arose in the Ukraine after
presidential elections. The author formulates basic objectives of Ukraine’s
foreign policy and possible versions of its relations with the European
Union within the framework of the European Union’s policy concerned with the
Central and Eastern Europe.
Nikolay Mironov
Legal Analysis of the Ukraine’s Presidential Elections
The author analyzes legal aspects of Ukraine’s presidential elections of
2004 and evaluates the legal basis of the elections. Also, the article
provides criticism of the defects in the conduct of the elections especially
in relation to violations of voters’ rights. There is a discussion of the
disqualification of the first ballot (21 November 2004) and the conduct of
the new one (26 December 2004). Further, there is consideration of whether
the amendment of the legislation immediately before the elections was a
violations of the electoral process and the rights of citizens. The author
proposes that there should be new elections.
Vladimir Pastukhov
The Ukraine’s Statehood: Test of Independence
The recent Ukrainian Presidential elections will have a great influence on
development of Russia’s relations not only with Ukraine, but also with
western states. The author considers the causes of the crisis and its
possible consequences. Further, he analyzes the mistakes that were made by
Russia in the process of these elections.
Mikhail Pastukhov
The Referendum in Belarus: There Are More Questions then Answers
The author analyzes constitutionality (legality) of the referendum conducted
in Belarus on October 17, 2004. Attention is mainly drawn to numerous and
serious violations of the legislation during the voting conducted in advance
and on the day of the referendum. The author suggests that it is impossible
to recognize this “October” referendum in Belarus as having been
constitutional and the result cannot be regarded as reliable. According to
this conclusion, the arrangement named “The Referendum 2004” does not give
to A.Lukashenko the right to participate in the presidential elections in
2006.
Forum
Political Rights and Free Elections
Hans Meyer
Electoral Rights as an Instrument of Distribution of Political Power
The subject of this article is the institution of elections and it focuses
upon how the peculiar characteristics have exerted influence on the locus of
different political powers in the state system. The author analyzes basic
electoral principles from the point of their practical realization and
significance. The question of political influence on electoral legislation
is raised by the article.
Valery Zorkin
The Right of Free Elections in the Russian Federation Constitutional Court’s
Decisions
The great significance of the right to free elections for the development of
democracy is underlined by the article. The author researches cases of the
Constitutional Court of the Russian Federation on this matter and exposes
their importance for realization of the right of free elections.
Rosemary Will
The Practice of German Constitutional Courts on Electoral Cases
The article is devoted to the activity of Federal Constitutional Court of
Germany and the constitutional courts of the federal regions which are
concerned with checking of correctness of results of parliamentary
elections. The author analyses the questions concerning the practice of the
constitutional courts of the Federation and the federal regions and then
describes corresponding models of legislative regulation of legal
proceedings, existing both at the federal level of authority, and at the
regional level.
Anita Usacka
The Role of Constitutional Court in Protection of the Electoral Right:
Latvia
The paper takes the example of a decided case in the Latvian Constitutional
Court about the restriction of passive electoral rights of some categories
of citizens to show the process of decision making in the field of human
rights. In particular the case is used to demonstrate how the reasoning in
this decision affected the meaning of coordinate and vertical connections
developed by the constitutional court and by international courts. The
article also raises the question of the court globalization problem, the
value of doctrinal judicial practices in the field of human rights, and the
difficulty of distinguishing the border between the political and legal
matters of separation of powers.
Lech Garlicki
Electoral Rights in the European Court’s Practice
The European Court has presided over a lot of cases concerned with
violations of electoral rights. The article contains wide research of such
cases. The author points out some principles, based on the practice of the
European Court, which should be followed to make elections corresponding to
the Convention on protection of human rights and liberties, and to prevent
violations of electoral rights.
Renata Uitz
Freedom of Expression before Elections: “Campaign Silence” and Other
Limitations
The constitutional protection of freedom of expression is meant to guard the
uninhibited public discussion of matters of public concern. In modern
constitutional democracies the discussion of public affairs is most intense
during electoral campaigns. Nonetheless, it is exactly during electoral
campaigns when freedom of expression is subject to such additional
limitations (campaign silence). The author analyzes the utility of campaign
silence rules in safeguarding national elections at the dawn of the 21st
century.
Hector Lopez Bofill
Banning Political Parties as a Sign of Militant Democracy
The article describes a process of transformation of the “procedural
democracy” into “militant democracy”, and demonstrates the most typical
features of the former. The main attention is paid to the problem of the
limitation of political parties’ platforms, in the light of new Spanish Act
of Political parties 2002. The author analyses the situation concerned with
prohibition of party “Batasuna” and the consequences of such decisions.
Stephen Holmes
Political Rights and Counterterrorism
The article is devoted to the defects of American system of political rights
and freedoms, imperfections of the electoral system of the USA. The author
analyzes how the counterterrorist campaign of the President Bush’s
Administration influences the whole political system and criticizes activity
of the executive authorities. He points out some principles that executive
branch should follow in its counterterrorist actions to meet the democratic
and constitutional requirements.
The European Union
Evgeni Tanchev
Wine Bottling Legitimacy or EU Legitimation by a Written Constitution
In this article problems of legitimacy DTC are reviewed and various ways of
legitimation are outlined using the old metaphor of wine bottling. The
adoption of the first non statal constitution is analyzed in the context of
constituent power. The proposals regarding the procedure and substance of
the DTC have been made in case a stalemate in the ratification process
occurs.
Agnes Nicolai
Constitutional Mechanisms of Denmark and Sweden in the Base of Legitimacy of
the European Union
This article considers the Constitutional mechanisms guaranteeing the
legitimacy of European law in Denmark and Sweden. Despite the eurosceptic
attitude that characterizes these countries’ policy towards the EU, both
Sweden and Denmark are “model” states in term of their compliance with
European law. The article illustrates how both countries have developed
constitutional and judicial mechanisms that insure that all decisions taken
within the field of European law, and that require a transfer of sovereignty
from the national to the European level, are in accordance with the
fundamental principles of these two states. Furthermore, the article
identifies the role played by these two states at the European level. Their
policy has been oriented towards promoting a more transparent and efficient
EU, as a strategy to increase the respect of the EU for Danish and Swedish
“constitutional” principles. The author concludes by arguing that the
relative success of this policy is a condition of the continued membership
of both Denmark and Sweden of the EU.
Federalism
Lubov Boltenkova
Legal Aspects of the Federal Relations in the Russian Federation
In this article the author conveys an understanding of the optimization of
federal relations. State construction is considered as a choice of the
greatest or least value elements of federalism. The author considers 26
elements of federalism and suggests the weighting between these elements
will depend on the concrete situation inside and outside of the country
(Russia). The author believes that Russia has a strong legal base for
federalism and is confident that support for it will be maintained.
Marat Salikov
Some Problems of Delimitation of the Legislative Powers in the Russian
Federal System
The analysis of the modern model of delimitation of competence in the
Russian Federation together with the latest legislation makes it clear, that
federal legislators interpret the concept of “common principles” too
broadly, regulating in details some questions in the sphere of joint
jurisdiction. The author notes that there is a tendency towards
intensification of “federal presence” in this sphere and as a result further
centralization of federative relations. It is also noted that principle of
equality of rights is violated within the complex subjects of the
Federation.
Richard Sakwa
Russian Federalism at the Crossroads
In the 1990s segmented regionalism emerged combining elements of federalism
and state breakdown. President Putin’s measures since 2000 to reconstitute
the state have taken the form of compacted statism that has undermined the
pluralistic statism that is typical of federalism. The fundamental problem
today is not simply the tension between federalism and statism, but between
different types of state reconstitution.
Back Observation
Andrey Medushevsky
Legal Dualism: the Project of the Civil Code of the Russian Empire
Legal dualism is one of characteristic features of contemporary Russian
legal culture. The essence of this phenomenon is a contradiction between two
different types of law – positive law supported by the state and common law
supported by historical tradition. The Project of the Russian Civil Code
elaborated just before the Russian Revolution was the last and perhaps most
sustained effort in the creation of unified, modernized and rationalized
system of law. From a contemporary view point this experiment has not only
historical interest but a practical one. It can be interpreted as a treasury
of technological experience in transplantation of legal norms of the Roman
and European origins in traditional legal culture. Further, it can assist
with the creation of new methods and instruments for implementation of
positive civil norms in an unstable social situation. According to the
author this historical and comparative approach is a necessary element in
the reconstruction of the liberal legal culture which was destroyed during
and after the Revolution. Moreover, it has to be the basis for overwhelming
legal dualism in future.
Constitutional Review
Andras Sajo
Social Rights as Middle Class Entitlements in Hungary: the Role of the
Constitutional Court
The problem this article is focused on is of great importance for Russia
now. What is the modern understanding of social rights and what role can
constitutional courts play in designing social policies? The paper considers
the relevance of the recognition of social rights in emerging democratic
constitutions and offers a brief description of the rulings of Hungarian
Constitutional Court, especially regarding pensions, health care,
“appropriateness” of the level of the service provided.
To get the first issue or to effect the subscription to "Sravnitel’noe
Konstitutsionnoe Obozrenie" (ISSN 1812-7126), please, address to
Ekaterina Lazareva
Office-Manager
Institute for Law and Public Policy
tel: 7 (095) 928 00 20 or 564 86 83
fax: 7 (095) 921 07 33
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Address for visitors: 101000, Moscow, ul.Maroseika, 9/2, bl.8, office 34
or to one of the partners of JSC «MK-Periodica» in your country or to JSC
«MK-Periodica» directly.
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Tel.: 7 (095) 681 9137; 681 8747
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http://www.periodicals.ru
Yours sincerely,
Olga Valueva
Managing Editor, SKO
Institute of Law and Public Policy
tel. 7 (095) 928-00-20
fax 7 (095) 921-07-33
Email: [log in to unmask]
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