Body Of Constitutional Justice Research Articles

On New Powers of the Constitutional Court of the Republic of Belarus

The purpose of the article is to analyze the powers of the Constitutional Court of the Republic of Belarus, which were enshrined in the new edition of the Constitution of the Republic of Belarus. In preparing the article, systemic, structural-logical and comparative legal methods were used. As a result, a detailed assessment of the new powers of the Constitutional Court of the Republic of Belarus is given, taking into account the existing practice and experience of the constitutional justice bodies of foreign countries, including the Republic of Poland. The author makes a number of proposals for improving the legislation of the Republic of Belarus.

Рішення конституційного суду України: проблеми реалізації рішень

One of the urgent problems of the practice of the Constitutional Court of Ukraine is the implementation of its acts, the non-solution of which calls into question not only its guarantee of the supremacy of the Constitution of Ukraine as the Basic Law of the state throughout Ukraine, but also the authority of the Constitutional Court of Ukraine as a body of constitutional jurisdiction. The fulfillment by the Constitutional Court of Ukraine of the tasks assigned to it is achieved not so much by adopting the relevant acts as by their implementation and implementation. Without the implementation of decisions and conclusions of the Constitutional Court of Ukraine, all its previous activities regarding the consideration and resolution of relevant cases are nullified, it simply loses its meaning. As you know, the acts of the Constitutional Court of Ukraine are self-sufficient, that is, those that are mandatory, final, have a direct effect and do not require confirmation or duplication by any public authorities to enter into force. The obligation to enforce the decision of the Constitutional Court of Ukraine is a requirement of the Constitution of Ukraine, which has the highest legal force in relation to all other normative legal acts. In accordance with Art. 69 of the Law "On the Constitutional Court of Ukraine", decisions and conclusions of the Constitutional Court of Ukraine are equally binding. The problem is that the current legislation does not define the principles and mechanisms for the execution of decisions and conclusions of the Constitutional Court of Ukraine. As a result, a significant part of such acts do not find their practical implementation. It seems that the problems of implementing the prosecution, as well as the implementation of the decision itself, are associated with the lack of a clear control mechanism that would allow to identify the fact of non-compliance with the decision of the Constitutional Court of Ukraine, the result of which could be prosecution. Also, in the situation of Russian military aggression that has developed today in Ukraine, an important means of ensuring the implementation of acts of the Constitutional Court of Ukraine is to maintain the high authority of the body of constitutional justice, to increase the level of legal awareness and legal culture of citizens, and especially to persons authorized to exercise state power. Important conditions for the effectiveness of the Constitutional Court, including the implementation of its acts, are the establishment in Ukraine of the foundations of a legal, democratic state, as well as ensuring political and socio-economic stability in the country.

The powers of constitutional (statutory) councils of subjects of the Russian Federation as bodies of legal protection of the Basic Law

Constitutional (statutory) council is a new state body of federal subjects of Russia. The council is designed to replace the regional body of constitutional justice, abolished since 2023. At the same time, status of this new body is not detailed in the federal legislation, therefore, it gives rise to conflicting approaches in legal science. It is not clear whether the constitutional (statutory) council should (can) be a constitutional control body. Or it should be a supervisory body. It is not clear what set of powers the constitutional (statutory) council should have. The work uses historical and comparatively legal research methods. The authors study the experience of constitutional councils in republics of Yakutia, Bashkiria and Adygea. The conclusion is made about the main purpose of constitutional (statutory) councils: to ensure the supremacy and direct action of the Basic Law of the constituent entity of the Russian Federation and to exercise its legal protection. This implies the presence of powers: for normative control; on the interpretation of the constitution (charter) of the constituent entity of the Russian Federation; to resolve disputes between the highest authorities of the constituent entity of the Russian Federation. At the same time, an analysis of the laws on constitutional councils of subjects of the Russian Federation shows that they have the authority to exercise normative control in relation to all normative acts of a subject of the Russian Federation and local governments. However, they cannot deprive them of their legal force, since their decisions are advisory in nature. The right to interpret the Basic Law is granted to constitutional councils only in Yakutia and Bashkiria. The results of the interpretation are also advisory in nature, so the interpretation cannot be called an official interpretation (especially since the Constitutional Council of Bashkiria is preparing only a draft of such an interpretation). There is no power to resolve disputes in the laws on the status of constitutional councils in Yakutia, Bashkiria and Adygea. The conclusion is made about the ineffectiveness of the means of legal protection of the Basic Law available in the constituent entities of the Russian Federation. Mechanisms are proposed that will ensure the effectiveness of decisions of constitutional (statutory) councils. The right of constitutional councils to give an official normative interpretation of the Basic Law of a constituent entity of the Russian Federation is substantiated.

Сравнительно-правовой анализ Конституционных судов Российской Федерации и Республики Казахстан: процессуальный аспект

The authors of this work made an attempt to demonstrate the differences and similarities in the status, composition, structure and powers of the bodies of constitutional justice of the Russian Federation and the Republic of Kazakhstan. Such a comparative legal analysis is in demand by legal science in connection with the significant constitutional reform that took place in Kazakhstan in 2022, as a result of which the Constitutional Court replaced the Constitutional Council. In addition, the Constitutional Laws of the Republic of Kazakhstan "On the Prosecutor's Office" and "On the Commissioner for Human Rights in the Republic of Kazakhstan" were adopted. In 2020, the Basic Law of the Russian Federation also underwent significant changes. We should not forget about the similarity of the paths of development of constitutionalism in Russia and Kazakhstan, which is due to the Soviet past, close proximity and close cooperation in various fields of activity. The result of the study was the conclusion about the proximity of the Russian and Kazakhstani models of constitutional justice. Despite this, there are quite unique norms that are characteristic of the constitutional acts of each country. Attention is drawn to the differences in the status of constitutional justice bodies, as well as differences in their competence. The procedure for the formation of the Constitutional Courts of the Russian Federation and the Republic of Kazakhstan is different, the issues of ensuring their activities are resolved in different ways. Differences are established in the subject composition that enjoys the right to apply to the Constitutional Court of their state. Identified special conditions for filing a complaint with citizens of Russia and Kazakhstan in the national bodies of constitutional justice.

Problems of implementation of decisions of the Constitutional Court of Ukraine

One of the urgent problems of the practice of the Constitutional Court of Ukraine is the implementation of its acts, the non-solution of which calls into question not only its guarantee of the supremacy of the Constitution of Ukraine as the Basic Law of the state throughout Ukraine, but also the authority of the Constitutional Court of Ukraine as a body of constitutional jurisdiction. The fulfillment by the Constitutional Court of Ukraine of the tasks assigned to it is achieved not so much by adopting the relevant acts as by their implementation and implementation. Without the implementation of decisions and conclusions of the Constitutional Court of Ukraine, all its previous activities regarding the consideration and resolution of relevant cases are nullified, it simply loses its meaning.
 As you know, the acts of the Constitutional Court of Ukraine are self-sufficient, that is, those that are mandatory, final, have a direct effect and do not require confirmation or duplication by any public authorities to enter into force. The obligation to enforce the decision of the Constitutional Court of Ukraine is a requirement of the Constitution of Ukraine, which has the highest legal force in relation to all other normative legal acts. In accordance with Art. 69 of the Law "On the Constitutional Court of Ukraine", decisions and conclusions of the Constitutional Court of Ukraine are equally binding.
 The problem is that the current legislation does not define the principles and mechanisms for the execution of decisions and conclusions of the Constitutional Court of Ukraine. As a result, a significant part of such acts do not find their practical implementation.
 It seems that the problems of implementing the prosecution, as well as the implementation of the decision itself, are associated with the lack of a clear control mechanism that would allow to identify the fact of non-compliance with the decision of the Constitutional Court of Ukraine, the result of which could be prosecution.
 Also, in the situation of Russian military aggression that has developed today in Ukraine, an important means of ensuring the implementation of acts of the Constitutional Court of Ukraine is to maintain the high authority of the body of constitutional justice, to increase the level of legal awareness and legal culture of citizens, and especially to persons authorized to exercise state power. Important conditions for the effectiveness of the Constitutional Court, including the implementation of its acts, are the establishment in Ukraine of the foundations of a legal, democratic state, as well as ensuring political and socio-economic stability in the country.

Aspects of taking into account foreign experience in the formation of bodies of constitutional jurisdiction in Ukraine

The publication examines the formation of the judiciary of constitutional jurisdiction both in Ukraine and abroad. Different approaches to the formation of the composition of constitutional review bodies are analyzed, historical, economic, political and niche factors that determined a certain order of formation of such bodies are identified. The important role of the peculiarities of the formation of the composition of the bodies of constitutional jurisdiction in ensuring the independence of this body and in ensuring the proper legal protection of the constitution is noted. It is noted that the analysis of foreign experience in this issue is an impetus to expand scientific and expert discussion in this direction in order to find the best ways to overcome the problem of quality formation of the Constitutional Court of Ukraine, given the established successful practices of foreign countries.
 It is established that the role and importance of the body of constitutional justice in society and the legal and political system of a modern constitutional, democratic state is extremely important. The Constitutional Court, as a body of constitutional control, occupies an important place in the mechanism of legitimation of state power, as it is designed to protect the constitutionally enshrined sovereignty of the people from illegal actions and decisions of public authorities. To this end, the Court must act as an unconditional authoritative body of state power, endowed not only with the right but also with a real opportunity to take measures aimed at protecting the Constitution. One of the important elements of ensuring this status is the proper and high-quality staffing of the Court with highly professional staff, which is primarily related to the processes of forming the CCU.
 However, as noted in the scientific and expert community, even in those European countries where the so- called mixed principle of forming a body of constitutional jurisdiction (as in Ukraine), no universal approach is used to appoint judges of the constitutional court, as each state regulates this issue. in his own way. Therefore, proposals are made, in particular, given the peculiarities of our political system and incomplete judicial reform, it would be appropriate to exclude the Congress of Judges from among the entities authorized to form the Constitutional Court of Ukraine (let’s not forget that this requires changes to Of the Constitution), and to entrust the procedure of selection of CCU judges to the relevant commission, the members of which would be nominated by both national and international experts. Resolving these issues is extremely important, and therefore is an impetus to expand scientific and expert discussion in this direction in order to find the best ways to overcome the problem of quality formation of the Constitutional Court of Ukraine, given the established successful practices of foreign countries.

Доктринальная оценка правовых позиций высшего органа конституционного правосудия России по делу гражданина И. Н. Фролова в фокусе роли адвокатуры и правозащитной системе государства

The paper examines the legal positions of the Constitutional Court of the Russian Federation related to resolving a dispute about the right of a defense lawyer to appear at investigative actions with electronic technical means that allow fixing the procedural form of the actions being implemented. As a result, the positive aspects of the proposed constitutional interpretation are emphasized, and obvious gaps in the truly complete solution of the problems arising from the fact of the (possible) use of these means. Noting the duality of the positions of the highest body of constitutional justice on the issues under study, the authors offer the best options for resolving them.

The constitutional test of necessity: problem statement

The subject-matter of the research is the constitutional test of necessity. This element of proportionality could be found in doctrine and case-law in the form of metaphors. The necessity as a prong of proportionality consists in testing the available alternatives in comparison with the measures that the legislator has chosen to achieve public aims. The notion of a least restrictive means can be used as a synonym for this element of proportionality. Although this term is cumbersome, it more precisely defines the nature of constitutional litigation, where the admissibility of interference with fundamental rights is assessed.The purpose of the research is to argue that this element of proportionality implies the assessment of the least restrictive alternatives for the rights-holder in order to achieve the goal chosen by the legislator.The methodology of research includes the method of analogy. Accordingly, the analogical reasoning is used in constitutional adjudication when testing necessity of legislative measures, but not the methods of logical subsumtion or judicial balancing. The sources of such analogy can be the rules of international law, ordinary legislation and comparative legal materials.The main results of the research and the scope of their application. The expression necessity is widely used in international law and ordinary legislation. Such approaches are relevant to constitutional adjudication. Thus, the ultima ratio principle, which initially appears in criminal and administrative law, acquires universal application in constitutional justice. This criterion, which requires the use of the most severe legal measures only as a last resort, with the ineffectiveness of softer alternatives, can be extended to the constitutionalization of other branches of legislation.The test of necessity, which is often expressed in metaphors, in the case-law of constitutional justice is based on the method of analogy. In the decisions of the constitutional justice bodies, the least restrictive means are often mentioned in comparison with those which were originally chosen by the legislator. At the same time, the discovered alternatives should be equally or at least minimally suitable in comparison with the existing legislative solutions. Comparative law, international law, or ordinary legislation are often an auxiliary source for constitutional judges to identify and formulate least restrictive alternatives.Conclusions. The value of the analogical reasoning, including the appeal of constitutional justice to comparative law materials, lies in the possibility of identifying some experimental legal regimes. Moreover, the perception of specific alternatives, their clarification or modification remains within the discretionary powers of the legislature. Thus, avoiding the well-known counter-majoritarian difficulty, constitutional justice conducts a dialogue with the parliament, and in the end, contributes to the optimal implementation of fundamental rights.

LEGAL POSITIONS OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION IN THE SPHERE OF LEGAL RESPONSIBILITY OF LOCAL SELF-GOVERNMENT BODIES AND THEIR OFFICIALS

The scientific article analyzes the legal positions of the Constitutional Court of the Russian Federationin the field of legal responsibility of local governments and their officials, notes the important role of theConstitutional Court of the Russian Federation as the highest body of constitutional justice and its influenceon the legal framework in the field of local government, including legal liability of bodies and officials oflocal self-government. Particular attention is drawn to the legal positions in which the Constitutional Courtof the Russian Federation analyzes the concepts of “local self-government bodies’ and “local self-government officials”, determines the forms of responsibility of the head of the municipality, deputy, member of theelected body of local self-government, elected official of local self-government, and as well as municipalemployees.

Constitutional justice bodies in the Russian Federation

Constitutional justice bodies in the Russian Federation

Constitutional justice bodies in the Russian Federation in the mechanism of identifying, overcoming and eliminating gaps in legislation

Constitutional justice bodies in the Russian Federation in the mechanism of identifying, overcoming and eliminating gaps in legislation

Эволюция статуса органов конституционного правосудия в Кыргызской Республике

The article analyzes the main trends and features inherent in the evolution of the status of constitutional justice bodies in the Kyrgyz Republic. The aim of this research is to identify both the common features characteristic of this process in the countries existing in the post-Soviet space and the specific ones due to the peculiarities of the state and legal development of Kyrgyzstan. In the course of the research, a comparative legal method was used to analyze individual elements of the legal status of the Constitutional Court and the Constitutional Chamber of the Supreme Court of Kyrgyzstan (organization, competence, status of judges, legal force of decisions, etc.) in accordance with the constitutions of the Kyrgyz Republic of 1993, 2010, and 2021, the laws in force that regulated the organization and procedure for the implementation of constitutional justice, as well as when compared with the development of this institution in the Russian Federation and other CIS member states. In addition, analytical, formal legal and other methods were used, which made it possible to formulate the main conclusions. Based on a systems analysis of the legislation of the Kyrgyz Republic on constitutional justice, decisions of the Constitutional Court and the Constitutional Chamber of the Supreme Court of Kyrgyzstan, a study of the works of leading Russian (N.V. Vitruk, A.A. Klishas, I.A.Kravets, M.A. Mityukov, et al.) and Kyrgyz (A.A. Arabaev, B.I. Borubashov, R.M. Myrzalimov, B.T. Toktobaev, et al.) scientists in this field, the main tasks to improve the organization and implementation of constitutional justice in Kyrgyzstan were identified. These include: consistent strengthening of the independence of the Constitutional Court from other public authorities; a more detailed delineation of the powers of the Constitutional Court and other courts related to normative control, taking into account the processes of the formation of administrative justice; a more detailed regulation of the procedures of constitutional proceedings, including procedural differentiation of the procedure for exercising various powers of the Constitutional Court, modification of the norms on the legal force, and the procedure for the execution of its acts, including recognition of a certain discretion of the Court in determining measures necessary for the implementation of its decisions; improving the procedures for written proceedings and expanding the further use of information and communication technologies in constitutional proceedings, etc. The implementation of these tasks should be associated with general measures to increase the level of political and legal culture in society.

PROBLEMS OF DEVELOPING THE SYSTEM OF CONSTITUTIONAL CONTROL IN THE CONSTITUENT ENTITIES OF THE RUSSIAN FEDERATION AFTER THE 2020 CONSTITUTIONAL REFORM

This article analyzes the prerequisites for the 2020 constitutional reform, which abolished the institution of constitutional and statutory courts in the constituent entities of the Russian Federation. The author identifies the significance and factors for the development of regional constitutional justice, considered as one of the fundamental elements of Russian constitutional federalism. The study provides a detailed analysis of the arguments for liquidating the bodies of constitutional justice of the RF constituent entities with no options for ensuring effective constitutional control at the regional level, which seems to be a reflection of society’s low interest in maintaining the constitutional order. The leading reason for liquidating regional constitutional and statutory courts is the lack of a political request for their activities due to the underdevelopment of Russian federalism. The novelty of this research lies in identifying the relationship between the development of constitutional justice in the RF constituent entities and the political stability of the Russian state’s constitutional system. The author emphasizes the importance of the possibility of establishing constitutional justice bodies in the RF constituent entities for the development of domestic constitutionalism, which is preserved based on the current constitutional legislation. At the same time, the model, proposed within the 2020 constitutional reform and subjugating the regional constitutional justice to the RF subjects’ representative bodies, violates the constitutional principle of the judiciary’s independence. This article propose a hypothesis that the development of the constitutional basis of Russian federalism relies on the stability of the constitutional and statutory legislation of the regions. Consequently, the effectiveness of regional constitutional control is the foundation of the existing constitutional order. Therefore, the institutions exercising such control should be removed from the direct subordination to the representative bodies of the federation’s subjects.

Problems of interaction between the constitutional order and international law

The article analyzes the problem of the relationship between the provisions of constitutions and international treaties in constitutional law. Its solution often depends on the prevailing doctrine and case law of the constitutional courts regarding the application of the latter in the light of constitutional principles and rules. This is important for substantiation and decision-making by constitutional justice bodies. In this case, the problem is to decide whether the provisions of international treaties comply with the constitutional order and whether the constitutional justice authorities will use the provisions of international treaties in their activities and borrow elements of argumentation of international jurisdictions. This is the subject of heated debate, especially with the establishment of the European Economic Communities, although there is a specific relationship between international and national law, between supranational and national legal orders, as the nature of the EU is supranational and multilevel.Based on the experience of the constitutional justice bodies, arguments are presented that despite quite contradictory approaches, such can be unified by the Constitutional Court of Ukraine. This can be achieved provided that he solves these problems through the prism of fundamental principles of law, thus ensuring the supremacy of the Constitution of Ukraine and the national identity of Ukraine in the legal geography of the world. The components of such a process are the application by the ССU of the principle of friendly attitude to international law and taking into account national interests, constitutional principles of territorial integrity and independence of Ukraine, human rights guarantees and compliance with due process. The study of Ukraine’s European integration in the light of constitutional principles should be based on the protection of the above values and the effectiveness of human rights, the balance of private and public interests. In the light of harmonization of legislation under the EU-Ukraine Association Agreement, the acquis commumautaires of the European Communities should also be taken into account, in particular the case law of the Court of Justice of EU, which can be used as a basis for reasoning public administration and judicial decisions.

Independence of Constitutional Justices: Stumbling Blocks in Ukraine and Poland

The article is devoted to the problems of the functioning of constitutional justice in Poland and Ukraine. Applying the methodology of comparative law research and empirical analysis, the authors consider the problems of the violation of the principle of independence of constitutional justice in these countries, explore common and distinctive features of crisis situations, try to find the reasons that cause them, and deduce the relationship between the legitimacy of the decisions of the constitutional justice bodies and independence of these bodies. The authors substantiate and analyse two components of the legitimacy of the constitutional courts’ decisions: substantive (fairness and compliance of decisions with the principles of constitutionalism) and instrumental (proper validity and argumentation, which leave no doubt about the fairness and correctness of such a decision).

Cultural and legal significance of the Supreme Court of the United States

The study’s objective is to reflect on the cultural and legal experience of the United States Supreme Court as the oldest body of constitutional justice, with its long legal tradition, which seems essential for states undergoing constitutional law reform. The study used general scientific methods of analogy, classification, typology, systematization, analysis, and others, as well as special scientific methods such as systematic, functional, historical, the study of judicial practice (which included observation and description), the method of comparative law, etc., which allowed to present the views of the authors, and thus to achieve the objective of the study. The results and novelty of the work are to identify the cultural and legal significance of the activities of the highest judicial instance of the United States in the formation of the legal culture of American society. The authors address the genesis of the cultural and legal aspects of the U.S. Supreme Court, which served as the basis for the formation and implementation of constitutional rights and freedoms in the American state.

Modern Factors, Which Have Influenced the Formation of Legislative Initiative on the Abolition of Constitutional Courts in Constituent Entities of the Russian Federation

The constitutional foundations of the constitutional systems of the Russian Federation and their problems of functioning as a part of the judicial system of Russia are analyzed in the article. The main reasons for the creation of constitutional justice bodies only in a limited number of constituent entities of the country are revealed, the objective conditions are discussed, which caused the adoption of the federal constitutional law on the abolition of constitutional courts in connection with the amendments to the constitutional legislation of the country. Subjective factors that influenced the decision to change the forms of constitutional justice at the level of the constituent entities of the country are justified.

Правовая доктрина в деятельности Конституционного Суда Российской Федерации

The article is devoted to the study of legal doctrines in the activities of the national body of constitutional justice. In legal science, judicial practice, and state-legal reality, the term “doctrine” in various combinations has become one of the most widely used and ambiguous. At present, the attitude to the legal doctrine is changing, which in a short time has gone from an unused regulator of legal relations in the Russian legal system to an optional one, giving way only to the dominant source (form) of law — a normative legal act. References to doctrines in the final acts of the constitutional Court of the Russian Federation, as well as their direct formulation and use, are a special subject of research activity, which determines the practical significance of the proposed article.

Liquidation of the Constitutional (Charter) Courts of the Constituent Entities of the Russian Federation: A Pattern or Error?

The history of the regional constitutional justice formation in the Russian Federation is a series of flaws and compromises that hindered its normal functioning. Initially badly considered and not properly formalized by law, the system faced numerous problems that led to the reversal of the process and the abolition of the constitutional (charter) courts of the constituent entities of the Russian Federation. This resulted in the adoption of amendments to the Constitution of the Russian Federation, excluding these courts from the judicial system. This decision seems logical in the current circumstances, but incorrect from the standpoint of strengthening democratic and federal principles in the state structure. The proposal to liquidate constitutional courts is an example of avoiding a solution to the problem: a simple path is chosen instead of careful examination of the issue and working out measures for possible optimization of this system and using its potential. Reforming constitutional justice bodies with a significant expansion of their jurisdiction can turn them into an effective tool for solving the main task of the state, i.e. protecting the rights and freedoms of citizens.

ПРИНЦИПЫ КОНСТИТУЦИОННОГО ТОЛКОВАНИЯ. ПРАКТИКА КОНСТИТУЦИОННОГО СУДА АЗЕРБАЙДЖАНСКОЙ РЕСПУБЛИКИ

The article studies four classical ways of interpretation of constitutional rights by constitutional justice body. The author concludes that in applying the four canons of interpretation, a sequence must be observed where the grammatical interpretation is the basic method of understanding the meaning of the Constitution and laws of the Republic of Azerbaijan on the issues of implementation of human rights and freedoms. Systematic and teleological interpretation are used as additional methods. The methods under consideration acts as a certain framework for judges (или The methods under consideration provided a framework for judges.). Thus, following them does not allow the constitutional justice bodies to go beyond their own competence. The analysis of classical methods of interpretation stimulates further research in this area, including a separate analysis that requires interdisciplinary interpretation, constitutional conformal interpretation, a comparative interpretation of constitutional text, etc.