Constitutional Justice Research Articles

Категория «суверенитет» в практике российского конституционного правосудия

The category of “sovereignty” is inherent in the characteristics of the Russian state, this is predetermined by the provisions of the Constitution of the Russian Federation. The appeal to this category in the practice of constitutional justice is conditioned by the need to protect against increased threats to the rights and freedoms, security and well-being of society and the state itself. An analysis of the practice of the Constitutional Court of the Russian Federation shows that the category of “sovereignty” manifests itself and reveals itself in particular legal relations (international, federal, tax, customs, etc.) as a kind of protective mechanism that ensures the preservation of the state and legal system of Russia in conditions of the most acute and dangerous threats of both internal and external origin.

Transformation of the Constitutional Justices Tenure After the Constitutional Court’s New Act

The periodization system in the constitutional judges’ position has the opportunity to undermine the judges’ independence. the opportunity to be re-elected as an opening for political transactions between constitutional judges with the proposing institution. The enactment of Act No. 7/2020 is a new era for the system used in the constitutional judges’ term. The periodization of the Constitutional Court judges’ term was replaced based on the age limit of 70 years. This research examines the design of Constitutional Court judges’ terms after the enactment Act No. 7/ 2020. This article is written based on normative legal research. This study concludes that the transformation of the Constitutional Court judges’ term into non-periodization aims to strengthen the independence of Constitutional judges from any intervention. At the same time as a fortress from external pressure and ensures that judges do not face conflicts of interest arising from the possibility of extending the term.

Analisis Legal Standing dan Konsistensi Putusan Mahkamah Konstitusi dalam Pengujian Materiil UU Nomor 7 Tahun 2017 tentang Pemilihan Umum: Studi Kasus Putusan No.90/PUU-XXI/2023

This research reviews constitutional review at the Constitutional Court (MK), especially in Case No.90/PUU-XXI/2023. The focus is on the applicant's legal standing and the Constitutional Court's considerations in making decisions. Legal standing is a legal right or position that allows a party to file a lawsuit before a court. In the context of material review, the applicant's legal position is the main determinant of the legitimacy of judicial review. Normative legal methods are used in this research to systematically and in-depth analyze the legal framework governing legal standing and the Constitutional Court's interpretation of it in the context of the cases studied. This research discusses the requirements and criteria for legal standing which are regulated in both the law and MK regulations, as well as the MK's interpretation of them in this case. The results show a debate surrounding the consistency, independence, and integrity of the Constitutional Court, especially regarding the controversial decisions received. Criticism emerged regarding the Constitutional Court's approach in assessing legal standing, where there were allegations of inconsistencies, loose assessments, and potentially dubious conflicts of interest. Thus, this research provides in-depth insight into the constitutional review process and the challenges faced by the Constitutional Court in maintaining its authority as an independent and credible constitutional justice institution.

Constitutional and legal principles of ensuring the independence of judges of the Constitutional Court of Ukraine

The independence of judges constitutes one of the fundamental components of the legal system in any democratic country. Within the legal framework of Ukraine, the constitutional and legal principles guaranteeing the independence of judges, specifically those of the Constitutional Court, represent a key element of the legal structure ensuring the stability of the rule of law, the protection of human rights, and the development of the rule-of-law state.
 It is emphasized that the guarantees of the independence of courts of general jurisdiction and bodies of constitutional justice play a critical role in ensuring legal stability and protecting judges from political or external influences. The independence of judges in performing their functions is crucial in upholding the principles of the rule of law and justice. Therefore, it is vital to ensure an effective mechanism to safeguard this independence from any external pressure or influence, regardless of the sphere of jurisdiction.
 It has been identified that one potential drawback associated with expressing a separate opinion of a judge of the Constitutional Court could be the blurring of the clarity of the adopted decision. Separate opinions generate significant interest among scholars and practicing lawyers, with the texts of such opinions often utilized in the educational process of legal institutions and drawing attention from judges of the Constitutional Court of Ukraine during the consideration of similar cases. As these documents contain doctrinal views on various aspects of cases reviewed by the Constitutional Court of Ukraine, they become the subject of additional analysis and consideration.
 It is noted that ensuring the independence of judges of the Constitutional Court of Ukraine is based on a comprehensive system of constitutional and legal guarantees aimed at ensuring their independence in resolving important constitutional issues and preserving the principles of the rule-of-law state in Ukraine.
 Moreover, Ukraine, as a participant in international treaties and organizations, is obliged to adhere to international standards in the field of justice and guaranteeing judicial independence. Consequently, means of protecting the rights of judges of the Constitutional Court are developed and adapted to international normative documents.

Extension of ECHR jurisprudence on respect for human rights in national criminal proceedings and compliance with its judgments in disputed territories

This article contends that these proposals should not be interpreted as ministerial alterations in supranational judicial procedure, nor as resolving a dispute on whether the ECHR should prioritize individual or constitutional justice. Instead, they should be seen as posing more profound inquiries regarding the future identity of the Court. The Article specifically supports the ECtHR's acknowledgment of 'incorporation' into national legal systems as a fundamental structural principle. This pertains to the ability to determine decisions made by the national court in criminal proceedings before the ECHR and to honor them in disputed territories. This contradicts the subsidiary theory that has always upheld the Convention since its establishment.

Некоторые вопросы совершенствования регулирования статуса Конституционного Суда Российской Федерации по осуществлению конституционного правосудия

The article analyzes the features of regulating the status of the Constitutional Court of the Russian Federation, taking into account the inclusion of new amendments to the Constitution of Russia. The author substantiates conclusions and recommendations aimed at improving the method of forming the composition of the Constitutional Court, ensuring guarantees for the activities of a judge, consolidating his jurisdiction and the procedure for carrying out constitutional proceedings. The question is raised about the advisability of adjusting the mechanism for executing the legal consequences of the final decisions of the Constitutional Court, associated with changes in the legal positions contained in them.

Lietuvos Respublikos Konstitucinio Teismo doktrinos savininko teisių apsaugos klausimais įvairovės suderinamumas

This article examines the doctrine of protection of the rights of the owner developed by the Constitutional Court over three decades. This goes back to the origins of the doctrine in the cases of constitutional justice which examined the constitutionality of the legal rules governing restitution relations. The following is a coherent and systematic disclosure of key doctrinal provisions, including those relating to the taking of property for public use and the limitation of the rights of the owner. The above-mentioned analysis of this article is also aimed to determine whether the constitutional justice cases, in which the constitutionality of the provisions of the law providing for limited restitution was decided upon, had any grounds for deciding on the constitutionality of the provisions of the law with respect to the provisions of Article 23(3) of the Constitution.

Konstitucinis Teismas kaip žmogaus teisių apsaugos institucija

The aim of this article is to highlight the role of the Constitutional Court in strengthening the protection and defence of the human rights in Lithuania. In order to achieve this aim, the following tasks are raised and addressed in the paper: 1) to reveal the forms in which the Constitutional Court contributes to the strengthening of the human rights protection; 2) to analyze the most important constitutional justice cases in the field of the human rights decided by the Constitutional Court and the most important principles of the official constitutional doctrine of the human rights; 3) to reveal how the Constitutional Court contributes to the protection of the human rights by examining the applications of courts and natural and legal persons.

Kai kurie legislatyvinės omisijos konstitucingumo kontrolės aspektai

The absence of the appropriate legislation in some areas of social relations or, in other words, the situation when certain social relations are not legally regulated, although there is a need to regulate them, implies the existence of a legal gap (lacuna legis). A legislative omission is a special legal gap because it is prohibited by Law, first of all, by supreme law – the Constitution. 
 The constitutional competence to investigate the constitutionality of legal gaps prohibited by Law was disclosed by the Constitutional Court of the Republic of Lithuania at the beginning of the second 
 decade of its activity. The competence to declare the existence of legislative omissions was derived from the power of the Constitutional Court, stipulated in the Constitution, to administrate constitutional justice and to guarantee the supremacy of the Constitution, with a view to the better protection of the human rights and freedoms. It was argued that not only a particular legal regulation, but also the absence of it, when the necessity to establish such a legal regulation stems from the Constitution, can lead to the violation of the human rights and freedoms. 
 The article analyses the conception of the legislative omission in the jurisprudence of the Lithuanian Constitutional Court and the constitutional review institutions of some other states. It also discusses the reasons which determined the choice of the model of the constitutional review of legislative omissions in Lithuania. Finally, the article examines some cases of the review of the constitutionality of legal gaps in the jurisprudence of the Lithuanian Constitutional Court. The authors argue that the legislature has the duty under the Constitution to adopt a legal regulation not only in those cases where the Constitutional Court finds a legal omission and recognizes that the challenged legal act is non-compliant with the Constitution, but also in those cases where, in the official constitutional doctrine, the Constitutional Court formulates some constitutional requirements which presuppose the establishment of a missing legal regulation.

Современные модели конституционного правосудия и их отличительные черты

The object of study in the article is the current models of constitutional justice used in various jurisdictions. The author examines the models of constitutional justice that are currently used by constitutional justice in various regions of the world. The relevance of the article is determined by the fact that the study of this issue makes it possible to choose the optimal model that allows effectively solving issues of national rule-making. For the Republic of Kazakhstan, this problem is very important in light of the creation in the country of a new model of constitutional justice, which requires scientific understanding taking into account the accumulated world experience in organizing constitutional justice. The purpose of the article is to study modern models of constitutional justice from the point of view of their main differences, advantages and disadvantages. Methods. The peculiarity of the methodology used is determined by the goal of a comprehensive study of existing models of constitutional justice. In this regard, the diversity of approaches, methods and means of understanding this form of legal process required reliance on comprehensive and systematic approaches. Conducting a study of the constitutional jurisdictional process required, firstly, the use of general scientific and proper legal methods, including methods of analysis and synthesis, induction and deduction, abstraction and generalization. Also in this work, a comparative legal method was used, which made it possible to carry out a comparative analysis of the models under study, identify their main characteristics, on the basis of which to formulate appropriate conclusions. In addition, in the process of working on the article, a country-specific legal approach was used, which made it possible to consider the features of national models of constitutional justice. Results. It has been determined that in the world practice of constitutional control, various models of constitutional justice are known. Based on the results of the study, it was determined that currently the most promising is the centralized (European) model. The conducted research allows us to say that the existing models of constitutional justice have both their advantages and disadvantages, however, in our opinion, the presence of a separate body that carries out constitutional justice is more preferable, since it ensures its autonomy, independence and objectivity in making decisions. decisions by professional judges who have the appropriate qualifications, authority and experience in considering complex issues related to rulemaking.

A comparative analysis of achieving access to constitutional justice with the mechanism of notifying the Court of Justice of the European Union

As a comparative analysis regarding the holders of the notification to the Constitutional Court and the holders of the notification to the Court of Justice of the European Union, we mention the fact that in both situations, the national court is the main promoter and the one that has the role of filtering the request for addressing the superior courts. We specify that other procedural subjects can invest the court either with an exception of unconstitutionality or with a request for a preliminary decision, for example the prosecutor or the parties in the pending case. In order for the referral with an exception to the constitutional court to be admissible, a series of cumulative conditions must be met. If one of these conditions is not met, the exception of unconstitutionality cannot pass the admissibility test, so the national judge will no longer proceed to the stage of analyzing the merits of the formulated exception. On the other hand, the request for a preliminary ruling must refer to the interpretation or validity of Union law, and not to the interpretation of the rules of national law or to factual issues invoked in the main litigation. Furthermore, the Court can rule on the request for a preliminary ruling only if Union law is applicable to the main case. From another perspective, the attribute of determining whether there is a contradiction between the national law and the treaty of the union belongs to the national court. From a distinct perspective, the Constitutional Court showed, among other things, that to the extent that the priority recognized to Union law is limited, in the Romanian legal order, by the requirement to respect the national constitutional identity, that it has the task of ensuring the supremacy of the Romanian Constitution on its territory. The effectiveness of the cooperation between the court and the national courts established through the preliminary reference mechanism would be compromised if the result of an exception of unconstitutionality before the Constitutional Court of a member state could have the effect of discouraging the national court, seized with a dispute governed by this law, to use the possibility or as the case may be to fulfill the obligation resulting from article 267 TFEU to address to the court the questions regarding the interpretation or validity of certain acts of the said law.

Maxima jura novit curia and the non liquet prohibition: Problems of understanding and application in civil proceedings

The article analyzes the traditional understanding in Russian civil procedure of the content of the maxim jura novit curia and the prohibition of non liquet, as well as their manifestation in contemporary Russian civil process. It is argued that the maxim jura novit curia and the prohibition of non liquet are in effect, manifesting in the court’s duty to apply the analogy of the law or the analogy of the right and resolve the issue before the court on its merits, even in the absence of norms directly regulating the disputed legal relationship. The competitive advantage of the Russian judicial process is identified, which lies in the ability to use the institutions of the analogy of the law and the analogy of the right to fill the absence of norms not only of substantive but also procedural law. The evolution of civil procedural legislation norms regarding the indexation of awarded sums and the influence of the Constitutional Court of the Russian Federation’s acts on this evolution are analyzed. The causes of errors in the understanding and application of the maxim jura novit curia and the prohibition of non liquet, made by ordinary courts when considering applications for the indexation of awarded sums, leading to the repeated necessity to invoke the mechanism of constitutional justice, are identified. It is concluded that the court has no right to refuse to satisfy a claim solely on the grounds of the absence of appropriate legal regulation, uncertainty, or gaps in the applicable law, and that avoiding the application of analogy when it is necessary to resolve the issue before the court should be regarded as a violation of substantive or procedural law norms. The article proposes the direct enshrinement of the status of acts of the Constitutional Court of the Russian Federation as sources (forms) of law and a detailed definition of the procedure for their application by ordinary courts in the text of the procedural law.

The Role of The Indonesian Constitutional Court in Preventing Social Conflict in A Diverse Society

In the diverse society of Indonesia, the Constitutional Court plays a vital role in maintaining social harmony and preventing social conflict. Although this contribution is largely indirect, the Court exerts significant influence through its decisions. Since its establishment in 2003, the Court has rendered over 1,000 decisions, many of which carry profound implications for Indonesian society. This article addresses how the Constitutional Court, through its decisions, has contributed to mitigating social conflicts and fostering equilibrium within the nation’s diversity. To analyze this main issue, a normative approach grounded in the nation’s laws and the Constitutional Court’s decisions will be employed. Several decisions, especially on judicial reviews and election disputes, will be examined to illustrate the Court’s role in minimizing social conflict. From a social theory perspective, the study of social conflict has relevance in the context of law and society, given the potential for various types of conflicts in Indonesia’s diverse society. The legal basis for addressing social conflicts in Indonesia is the 2007 Law on Social Conflict Management. According to this law, social conflicts may arise from various factors, including political issues, economic disparities, socio-cultural differences, inter-religious or inter-ethnic tensions, disputes over boundaries at the village, regency/municipal, or provincial levels, conflicts related to natural resources, and disparities in the distribution of these resources within society. The Constitutional Court indirectly plays a role in preventing social conflicts. Nevertheless, the Court faces challenges in fulfilling this role. Pressures from various parties and interests may hinder its ability to ensure constitutional justice, potentially compromising its principles of independence and impartiality in fulfilling its mandate.

Evidence and proving in constitutional proceedings: doctrinal aspects

It was noted that the realities of social life, the political situation, global processes of transformation of phenomena and processes require legal accuracy in understanding the fundamental prescriptions specified by the Constitution, as well as ensuring the compliance of legislation with its provisions. Regarding the first question, there are two ways of solving it: detailing the provisions, which to a certain extent creates bulky codified texts that are difficult to apply, or clear, comprehensive formulations of constitutional norms, which provide for the establishment of fundamental principles of the functioning of state power and society, without detailed extended texts. It was noted that the institution of judicial evidence in constitutional proceedings is not as carefully regulated as in proceedings in criminal, arbitration and civil cases.
 It is indicated that the constitutional court process is a special environment that differs from other court processes existing in our country: in the field of activity, powers of judicial bodies, subjects, stages, legal force of decisions. Peculiarities of the environment where proof is carried out certainly give rise to specificity in the subject of proof, subjects, content and types of proof. This creates the need for more detailed regulation of proof and evidence in constitutional proceedings. In our opinion, proof is a type of cognitive process that is carried out in the order established by law and covers the activities of subjects involved in constitutional proceedings. And therefore, evidence in constitutional proceedings is a type of knowledge that is carried out in the order established by law and covers the activities of the subjects involved in constitutional proceedings, at the same time it represents a combination of both cognitive and procedural activities. The cognitive component characterizes the process of cognition, and the procedural component characterizes the special form that cognition takes within the framework of the rules of constitutional justice. At the same time, the construction of the subject of proof in constitutional proceedings follows (corresponds) to the construction of the subject of proof adopted in national law. However, we draw your attention, it would be worthwhile to normalize the specificity of the subject of proof in constitutional proceedings as a process aimed at solving legal issues.

On the Specifics of the Constitutional and Legal Status of Judges of the Constitutional Court of Ukraine

Judges of the Constitutional Court of Ukraine possess a distinct status that combines elements of functional purpose within an independent body of constitutional jurisdiction and an individual entity of judicial authority.
 Emphasized is the constitutional and legal status of judges of the Constitutional Court of Ukraine, which can be viewed from two different perspectives. Broadly speaking, it is a significant constitutional and legal institution encompassing various aspects: societal, professional (in terms of material and legal status), procedural, and administrative (linked to the governance of courts). On the other hand, a narrow approach to the constitutional and legal status of judges of the Constitutional Court defines it as a system of judges' powers and duties prescribed by the Constitution and laws of Ukraine.
 It is noted that the procedure for the oath-taking by judges of the Constitutional Court of Ukraine differs from that of judges in general courts, highlighting their specificity: the oath signifies their solemn commitment to Ukraine, indicating the fulfillment of their constitutional functions within the state, rather than merely judicial activities in a general sense.
 In summary, the constitutional and legal status of judges of the Constitutional Court of Ukraine constitutes a system of legislatively defined norms and rules that regulate their role in society and the process of exercising constitutional justice. On the other hand, this legal position officially acknowledges and legitimizes their role as judges of the Constitutional Court, encompassing all aspects related to the execution of constitutional control functions. The legislatively defined legal status of judges of the Constitutional Court determines their powers, duties, and rights concerning the exercise of constitutional jurisdiction, regulating the procedures by which judges of the Constitutional Court make decisions, provide official interpretations of the Constitution of Ukraine, and perform other functions prescribed by the Constitution and legislation. The established norms set standards of activity ensuring their objectivity, independence, and high professional responsibility in exercising constitutional jurisdiction. Within this normative system, the constitutional and legal status of judges of the Constitutional Court is fundamental to ensuring legal stability, protecting constitutional values, and upholding the fundamental principles of the rule of law in Ukraine.

Transformation of the Institution of Constitutional Control in the Republic of Belarus

The article examines the stages of the evolution of constitutional control in the Republic of Belarus, through the prism of the development of abstract and concrete control. Characterizing the form of abstract control, attention is drawn to a certain adjustment of abstract subsequent control, introduced with the adoption of the Constitution of the Republic of Belarus in 1994, at different stages of constitutional development (1996, 2014, 2022) in relation to subjects of circulation, objects of control. The form of mandatory preliminary control over the constitutionality of laws adopted by Parliament before their signing by the President, introduced in 2008, is analyzed. As a result of the constitutional changes of 2022, the Belarusian model of preliminary constitutional control has undergone a certain transformation associated with its constitutional legitimation, the expansion of objects of preliminary control, as well as the transition from mandatory to optional control over the constitutionality of laws adopted by Parliament before they are signed by the President. Particular attention is paid to the study of the development of specific constitutional control, taking into account a certain adjustment of the constitutional formula in 2022 with the aim of consistent development of the Belarusian model of constitutional justice within the framework of the European model. Attention is focused on the most important constitutional innovation of 2022 – the introduction of a constitutional complaint, which significantly expands citizens’ access to constitutional justice. It is concluded that each stage of the development of constitutional control in Belarus serves as an example of adaptation to the changing conditions of the functioning of constitutional justice. It has been established that the adjustment in 2022 of the Belarusian model of subsequent concrete constitutional control indicates a transformation of the Belarusian model of constitutional control, consisting of the abandonment of elements of a mixed model, and the current stage of the evolution of constitutional control in the Republic of Belarus demonstrates the transition from an abstract form of constitutional control to concrete constitutional control , which means an increasing role of the Constitutional Court not only as a guarantor of the supremacy of the Constitution, but also as a defender of individual rights and freedoms.

Constitutional Review as a Democratic Instrument

Abstract The article situates Rosalind Dixon’s Responsive Judicial Review in constitutional legal literature and engages with its central message by introducing the idea of constitutional courts as accessible democratic institutions. It compares constitutional review in a well-functioning and a declining democracy. After considering the relationship between democratic self-government and constitutional review, the article argues that a lawfully established, accessible, yet reasonably self-restraining constitutional court with the power of procedural and substantive review can be understood as a democratic institution. To support this claim, the article offers the example of Hungary, where democratization coincided with the birth of accessible constitutional review and where the decay of democracy has been accompanied by the decline of constitutional review. It concludes that constitutional justices can always have a choice. They can contribute to an autocratic transformation or resist the autocratic government by performing a Herculean task.

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.

Manifestation of Direct Application of Constitutional Norms in the Field of Law Enforcement

The article refers to the application of constitutional norms by the courts and the interpretation given in the practice of the Constitutionl Court. In particular, the right of a person to seek judicial linitgation to protect his/her constitutional rights, the jurisdiction of the courts to apply the Constitution, the relantionship between the principle of supremacy of Constitution and the concept of implementantion of Constitution, the duty of ordinary courts to appeal to the Constitutional court and simultaneously justify unconstitutionality of a legislative norm, have become the subject of discussion. The article proposes an effective application of the constitutional nroms, introduction of flexible and applicable mechanisms for constitutional justice.