Federal Constitutional Law Research Articles

LEGAL BASIS FOR ADOPTION NEW SUBJECTS TO THE RUSSIAN FEDERATION PART 1. CONSTITUTIONAL CONDITIONS

The article is devoted to the definition of the constitutional conditions for the admission of new subjects to the Russian Federation. Special emphasis is placed on the formal legal approach to the disclosure of the subject of research. The author substantiates the independence of the procedures: “admission of a new subject to the Russian Federationˮ and “formation of a new subject within the Russian Federationˮ. Substantial analysis of proposals to amend the federal constitutional law “On the procedure for Admission to the Russian Federation and the formation of a new subject of the Russian Federation in its compositionˮ has been carried out.

ДОСРОЧНОЕ ОСВОБОЖДЕНИЕ ОСУЖДЕННОГО ОТ ОТБЫВАНИЯ НАКАЗАНИЯ В ЭКСТРЕМАЛЬНЫХ УСЛОВИЯХ: НЕКОТОРЫЕ ПРОБЛЕМЫ РЕГУЛИРОВАНИЯ

Based on the analysis of the provisions of the Federal Constitutional Law «On the State of Emergency», the Criminal Code of the Russian Federation, the Penal Code of the Russian Federation and other normative legal acts, a number of shortcomings in the regulation of parole, replacement of the unserved part of the punishment with a milder one and release from punishment due to the illness of the convicted person, accepted by the court in extreme conditions, that is, when natural disasters occur or a state of emergency or martial law is imposed. The article focuses on a number of issues: suspension of the convict’s right to apply for early release, leaving the possibility of such treatment with the administration of the institution or body executing the punishment; attribution of the convict’s participation in emergency rescue and other urgent work to the criteria for parole or replacement of the unserved part of the punishment with a milder one; imputation of post-penitentiary responsibilities related to the elimination of the consequences of extreme conditions; etc.

Абсолютные права и свободы: некоторые проблемы правовой регламентации

The article analyzes scientific opinions on the absolute nature of the fundamental rights and freedoms of human and citizen. The result of the analysis is the conclusion that the basis for distinguishing the constitutional rights and freedoms of human and citizen from absolute and relative rights and freedoms is the legal possibility of restricting them. The norms of the Constitution of the Russian Federation and federal constitutional and federal laws governing restrictions on human and civil rights and freedoms in a state of emergency, martial law, and counter-terrorism operation are being investigated. As a result, constitutional personal rights and freedoms of a person and a citizen with signs of an absolute nature are determined. The right to free economic activity (part 1 of article 34) and the right to housing (part 1 of article 40) of the Constitution of the Russian Federation are economic and may be limited in exceptional cases.

CONSTITUTION OF 1993 AND THE DEVELOPMENT OF CONSTITUTIONAL JUSTICE IN RUSSIA

The article reveals various aspects of the in uence of the Constitution of the Russian Federation of 1993 on the development of national constitutional justice. Such development is ensured through the improvement of constitutional norms by the legislator and, in this regard, the signi cance of the Law of the Russian Federation on the amendment to the Constitution of the Russian Federation of March 14, 2020 No. 1-FKZ, the adoption of which led to a certain modi cation of the existing model of constitutional justice, is revealed. It is shown how the understanding of constitutional norms on the organization and activities of the Constitutional Court of the Russian Federation has changed under the in uence of amendments made to the Federal Constitutional Law “On the Constitutional Court of the Russian Federation” in 2009, 2010, 2014, 2016 and 2020. In addition, a signi cant role in the development of constitutional justice is played by the legal positions of the Constitutional Court of the Russian Federation itself, which ensure the interpretation of constitutional norms in a certain socio-political context. Many of these positions were further constitutionally and legislatively xed. The in uence of the Constitution of the Russian Federation on the development of constitutional justice is revealed from several thematic perspectives: ensuring the autonomy and independence of the Constitutional Court of the Russian Federation as a body of state power; its composition, powers; the legal force of its decisions; regional constitutional justice. In conclusion, the author’s view of the problems under consideration is o ered.

Конституционный совет субъекта Российской Федерации: законодательство и практика

Federal Constitutional Law No. 7-FKZ of December 8, 2020, “On Amendments to Certain Federal Constitutional Laws” established that subjects of the Russian Federation have the right to decide tocreate constitutional (statutory) councils operating under the legislative (representative) bodies of state authority of the subject of the Russian Federation (part 7 art. 5). This study presents an analysis of the provisions of the laws of the subjects of the Russian Federation that established the status of the council, its powers and its member status.

RETROSPECTIVE ASSESSMENT OF THE PRACTICE OF IMPLEMENTING THE STATE OF EMERGENCY IN RUSSIA WITH PROPOSALS FOR IMPROVING ITS LEGAL RATIONALITY

The article considers the problem of improving the special legal regime of the state of emergency. As a solution to this problem it is proposed to change a number of articles of the Federal Constitutional Law of the Russian Federation No. 3 of May 31, 2021.

Systematic Approach to the Construction of a Law-Making Strategy (Using the Example of Strategic Planning of Spatial Development in Russia)

Currently in Russia, lawmaking is carried out according to the model of tactical (ad hoc) response to changing situations, i.e. by introducing many local changes to legislation (for example, in 2023, 685 federal and 9 federal constitutional laws were adopted). At the same time, the speed and depth of transformations taking place in the world, as well as the increasing complexity of social relationships, require a transition to a strategic approach, i.e. to the purposeful construction of the future by legal means. The law-making strategy allows us to reduce the variability in the development of legal regulation, so its study is a matter of current interest. The article attempts to study the law-making strategy from the perspective of systemic methodology. This approach allows us to consider the strategy comprehensively, characterize its properties, functions, composition and structure, as well as relationships with the external environment. The theoretical conclusions are illustrated using the example of the formation of a spatial development strategy for Russia. This area of strategic planning is now especially relevant, since it is necessary to respond to new external (sanctions, reorientation of economic relations) and internal (increasing the number of subjects of the Federation, redistribution of logistics flows, the need to ensure technological sovereignty) challenges. In conclusion, the author draws conclusions about the need to institutionalize the law-making strategy and to ensure a systematic approach in its formation.

Проблемы формирования состава Конституционного Суда Российской Федерации

The current issues of the formation of the composition of the Constitutional Court of the Russian Federation related to the reduction in the number of judges after the introduction in 2020 of the well-known amendments to the Constitution of the Russian Federation and the corresponding amendments to the Federal Constitutional Law "On the Constitutional Court of the Russian Federation" are analyzed. The problematic aspects of the nomination and appointment of candidates for judicial positions are considered. The proposals to lift the age restriction for all judges of the Constitutional Court are substantiated.

Специальная военная операция: проблемы правового характера

In the article, through the prism of constitutional norms and norms of the Federal Constitutional Law “On Martial Law”, the new concept of “special military operation”, which appeared within the framework of a special legal regime of martial law, is considered. At the same time, the acts of the President of the Russian Federation, which introduced martial law on the territory of certain subjects of the Russian Federation, are taken into account. Based on the results of the analysis, an explanation of the phrase “special military operation” is proposed. The Decree of the President of the Russian Federation of October 19, 2022 No. 757 “On measures implemented in the subjects of the Russian Federation in connection with the Decree of the President of the Russian Federation of October 19, 2022 No. 756”, providing for measures to be implemented in the subjects of the Russian Federation in connection with the publication of the Decree of the President of the Russian Federation of October 19, 2022, is analyzed No. 756 “On the introduction of martial law in the territories of the Donetsk People's Republic, Luhansk People's Republic, Zaporozhye and Kherson regions”. Legal inconsistencies and legal and technical errors have been identified in the text of the analyzed act. As a result of the conducted research, proposals were formulated to amend the Federal Constitutional Law “On Martial Law” and to amend the Decree of the President of the Russian Federation No. 757 of October 19, 2022 “On measures implemented in the subjects of the Russian Federation in connection with the Decree of the President of the Russian Federation No. 756 of October 19, 2022”.

Австрийская конституционная модель разграничения компетенции между Федерацией и землями

The constitutional development of the Austrian state at the turn of the XIX – early XX centuries was characterized by a combination of centralist and federalist tendencies. One of the controversial issues during the monarchy, and later in the First Austrian Republic, was the issue of the division of competence between the central government and its constituent parts. The Austrian half of the monarchy (Cisleithania), despite the long tradition of separate crown lands, was a unitary state, although decentralized. The division of competence between the center and the lands was based on the February Patent of 1861 and the December Constitution of 1867. At the same time, the issue of the correlation of different types of laws has not received certain regulation. In constitutional practice, there is an indisputable doctrine about the equal force of the imperial laws and the laws of the lands. After the collapse of the Austro-Hungarian Empire, the state of German Austria was created, which, according to Austrian legal historians, arose as a decentralized unitary state. The constitutional processes took place with the active participation of political parties. In the coalition agreement concluded on October 17, 1919 between the Social Democrats and the Christian Socialists, it was stated that the constitution should be adopted as soon as possible. By the beginning of the work of the Subcommittee of the Constitutional Committee in July 1920, agreement had been reached on a significant part of the constitutional text. At the same time, the issues of the division of competence between the Federation and the lands, as well as the relationship between federal law and land law, remained controversial. The Federal Constitutional Law, adopted on October 1, 1920 by the Constituent National Assembly, establishes a complex model for dividing competence between the federation and the lands. The theoretical justification for this approach to the regulation of the division of competence was presented in the first commentary to the Federal Constitutional Law, co-authored by Hans Kelsen (Professor at the University of Vienna, member of the Constitutional Court), Georg Froelich (Adviser to the Minister of the Federal Chancellery) and Adolf Merkle (Professor at the University of Vienna) (1922). The Austrian model of the division of competence between the federation and the lands remains unique, theoretically grounded, and characterized by political and institutional continuity.

Procedural Law Regulation: The Problem of Efficiency

The paper provides for some meanings of such an important scientific direction as the improvement of procedural and legal regulation. The authors describe this regulation as a specific way of legal regulation of public relations in general. The essence of procedural and legal regulation involves the activity of authorized entities who, with the help of procedural and legal means, provide regulation and protection in the process of ordering public relations. In the most general form, efficiency is understood as the balance between the actual result obtained and the planned goal, the achievement of which is conditioned by the solution of the corresponding tasks. In turn, the procedural and legal regulation is mediated by the relevant criteria and conditions enumerated in the paper. The authors name the improvement of procedural legislation among such conditions, since now procedural legislation has collisions, gaps, imbalances, etc. Perfect legislation means effective and high-quality legislation, which requires appropriate monitoring, unification of the tasks of judicial proceedings, intersectoral convergence, etc. The paper highlights the importance of procedural principles. The authors propose to consolidate in legislation such of them as justice, equality of everyone before the law and the court, as well as the principle of establishing objective truth. The authors propose to develop and adopt at the level of the federal constitutional law the Fundamentals of Procedural Legislation and Legislation on Judicial Proceedings in the Russian Federation and describe their structural construction.

Problems of Legislative Regulation of the Power of the Constitutional Court of the Russian Federation

The article reveals the approach to legislative consolidation of the power of the Constitutional Court adopted in Art. 3 of the Federal Constitutional Law of July 21, 1994 No. 1-FKZ “On the Constitutional Court of the Russian Federation”. Based on the results of a study of the relationship between the name, structure and content of this article, it was concluded that its name and content are not fully consistent with each other. In addition, taking into account the development trends in the practice of the Constitutional Court, a number of problematic elements of its competence that require in-depth study have been identified. These include, in particular, the concept of a normative legal act as an object of judicial constitutional control; types of laws to be reviewed; powers in the sphere of implementation of specific constitutional regulatory control. It is particularly difficult to determine the limits of constitutional-judicial justiciability, which is normatively expressed in the principle that allows the Constitutional Court to resolve only the issues of law. Finally, the issue of the subject of legal regulation of the Rules of the Constitutional Court has not received a consistent legislative solution. It is noted that the development of the powers of the Constitutional Court is significantly influenced by the practice of constitutional justice. On the one hand, certain defects in the normative regulation of the powers of the Constitutional Court can be quite successfully overcome by it by interpreting the Constitution and the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”. On the other hand, the application of these powers reveals such directions for their further development that can be fully disclosed and implemented only through legislative or even constitutional changes. Thus, the power of the Constitutional Court -- despite the fact that it has been functioning for three decades – remains a dynamically developing legal structure.

Judicial Practice as a Formal Basis for Restricting Human Rights and Freedoms

The paper deals with the issue of the formal grounds for restricting human rights and freedoms. Using the cases from the practice of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, the author confirms that judges’ creativity in the form of judicial decisions can restrict rights and freedoms, which means that it can be a formal basis for their restriction. The classic list of formal grounds, containing normative acts of various levels (from the federal constitutional law and the decree of the President of the Russian Federation to the resolution of the highest official of the constituent entity), is supplemented by judicial decisions. Decisions of the Constitutional Court of the Russian Federation and the legal standings of the Supreme Court of the Russian Federation, including reviews of judicial practice, can separately be considered as formal grounds for restrictions of rights and freedoms, whereas the decisions of arbitrazh courts and courts of general jurisdiction separately do not act as formal grounds for restrictions, since they act in a targeted manner. They become formal grounds when judges make many decisions with the same interpretation (reading) of a legal norm that goes beyond its literal interpretation and restricts the rights and freedoms of the man and citizen. The established judicial practice concerning restriction of rights and freedoms must meet the same criteria as other formal grounds for restrictions, i.e., impose proportionate restrictions corresponding to the objectives set out in the Constitution of the Russian Federation.

Ecoworship and Federal Environmental Law


 
 
 As the growing land stewardship movement has joined with rising evangelical environmentalism, religious worship has intersected with ecological protection to spark the rise of a new variety of ecoworship. Given the U.S. Supreme Court’s recent willingness to expand constitu- tional protections for religious exercise and trim bulwarks against Establishment Clause challenges, religious claimants now have bolstered powers to assert exemptions from governmental mandates based on their free exercise of faith. The growing role of faith-based environmentalism and institutional religions in private environmental protection will likely lead to similar claims for religious exemptions for pro-environmental activism based on faith. Most legal scholarship so far has squarely focused on the general foundational question of how federal and state constitutional laws apply to protect religiously motivated actions both within and outside environmental law.
 This Article takes a different tack. Federal environmental law is over- whelmingly statutory, and state environmental laws rely on a similar base. It is time to re-read these statutes through the newly expanded constitutional lens. This path yields two notable results. First, the increased accommodation for Free Exercise claims and revamped Establishment Clause parameters will inevitably shape the way that courts will interpret environmental statutes that impinge on religious activities. This interpretive tendency has a deep historical provenance in federal and state courts, although it is difficult to extract from the outsized historical shadow of Holy Trinity Church v. United States. Second, an altered interpretation of federal statutory terms through the new religious exercise lens could grant special status to proactive environmental initiatives impelled by religious beliefs, as essentially protected environmental worship. This reinterpreted statutory language could expand standing for certain claimants raising federal statutory claims, force the federal government to reassess the way it selects clean-up remedies or environmental permit limits in certain contexts, redefine the scope of environmental justice policies, and alter the degree of regulatory limitations on environmentally protective uses of land by religious actors.
 
 

Instead of the Electoral Code of the Russian Federation

The subject of the study is the legal norms regulating public relations regarding the functioning of institutions of direct democracy in the Russian Federation, as well as drafts of the electoral Code of the Russian Federation and the opinions of scientists on the need to develop and adopt a federal electoral code, as well as the definition of the codification of law as such. The author comes to the conclusion that the previously proposed draft codes are not inherently codification products, since they basically reproduce the norms of existing legislation instead of radically changing it. At the same time, similar problems exist not only with regard to the right to vote, but also in the legal regulation of other institutions of direct democracy.As a result of the conducted research, the author comes to the conclusion that in order to realize the democratic nature of the Russian state, increase the efficiency of the functioning of direct democracy institutions, reduce their dependence on the discretion of public authorities, increase the guarantees of citizens for access to them, it is possible and necessary to develop, widely discuss and adopt the Code of Democracy of the Russian Federation. In the work, the author sets out the original concept of the code, in particular, justifies its name, the form of the federal constitutional law, and also describes the proposed structure of the code, which should include general provisions, sections on subjects of direct democracy, on the functioning of individual democratic institutions, as well as a section on the infrastructure of democracy.

A Changed Constitutional Perception of International Law: Demonstrating the Move Ahead With a Turned Back Head?

Abstract Russia has entered a new epoch in its attitude to international law by adopting two small amendments to the Constitution. The 2020 Law “On an Amendment to the Constitution of the Russian Federation” introduced a package of numerous modifications. A few key ones deal with international law. Formally, they relate to the very particular issue on the possibility of refusing to comply with the decisions of international jurisdictional bodies, but in essence, they reflect a fundamental change in the country’s attitude to its obligations in the international community and the role of international law in general. The article assesses the significance of these amendments for the Russian legal system and shows the origins of such a change which was first indicated by the decision of the Russian Constitutional Court (RCC) and the federal constitutional law in 2015. Now this change is incorporated into the Constitution. Supporters of the changes are trying to assure that Russia follows the experience of western countries that conduct a similar policy towards the international courts. The article asserts that the argumentation used in such statements is incomplete and inexact; the real situation of relations between western countries and these courts is different. Russia is essentially the only country with an approved position on the acts of international jurisdictional bodies. It is shown that ensuring the supremacy of the Constitution by the amendments is senseless from a legal point of view. The true meaning of them is to erect barriers to “inconvenient” decisions of international bodies. Failure to comply with them entails a violation of obligations under international law. The amendments are to illustrate a demonstrative movement forward, presumably in line with current realities but in fact, this is a movement with a head turned back, a returning to the past. This policy has already become one of logical steps to Russia’s withdrawal from the Council of Europe (CoE).

The Constitutionality of Legal Measures During the Spread of COVID-19

The emergence of a novel coronavirus infection posed a major challenge to the global community and necessitated urgent and extraordinary measures to minimize the consequences of the pandemic. In the history of modern Russia, this was the first time a national emergency had occurred. Under such circumstances, the State needed an emergency response that also involved a regulatory mechanism. Of course, the regime of legal regulation in emergency situations has significant differences from everyday legal regulation. The author examines in detail the issue of constitutional and legal regulation of emergencies of this kind and analyzes and correlates it with actual legal regulation. Peculiarities of public authorities' organizational activity in pandemic conditions are investigated. Particular attention is paid to human rights during the spread of COVID-19. The author concludes that rather than applying the existing and well-defined regulations outlined in the Federal Constitutional Law "About the State of Emergency" from May 30, 2001 (¹ 3-FKZ), which stipulates the implementation of a state of emergency throughout the country or in specific areas, the ruling authorities have opted for an alternative legal approach. This decision has resulted in a swift modification of the emergency legislation, with its own set of consequences. The main problem, in the author's opinion, lies in the misapplication of the provisions of the Constitution of the Russian Federation, since from the systematic and interrelated interpretation of Articles 55 and 56 of the Constitution of the Russian Federation follows that they regulate the same social relations. However, article 56, unlike article 55, has special grounds for the application, so the principle of lex specialis derogate legi generali should be applied to them—that is, preference should be given to a special norm. In addition, the author proposes the adoption of a single legal act that would unify the different types of emergency situations and provide systematic and orderly legal regulation.

Law enforcement practice as an object of constitutional judicial assessment in the Russian Federation: Background, experience, problems

Turning to law enforcement practice has been and remains an important component of the activities of the Russian Constitutional Court. At the first stage of the history of the Russian judicial constitutional control — during the period of the Constitution (Basic Law) of the Russian Federation — Russia of 1978 and the RSFSR Law of July 12, 1991 No. 1599-I “On the Constitutional Court of the RSFSR” — consideration of cases on checking the constitutionality of law enforcement practice was separate authority of the Constitutional Court. In these conditions, law enforcement practice was the direct object of judicial constitutional review. With the adoption of the Constitution of the Russian Federation of 1993 and the Federal Constitutional Law of July 21, 1994 No. 1-FKZ “On the Constitutional Court of the Russian Federation”, the verification of the constitutionality of law enforcement practice was excluded from the competence of the Constitutional Court. At present, the Constitutional Court, while checking the constitutionality of legal acts, actively uses law enforcement practice as one of the means of establishing the meaning of the contested acts. The article shows that the Constitutional Court is constantly faces with the problems of defining the concept of law enforcement practice, which can receive different content in different situations. The question of the criteria under which law enforcement practice should be recognized as established is also unclear. Nevertheless, the importance of law enforcement practice for the activities of the Constitutional Court is generally increasing, which is confirmed, among other things, by the amendments made to the Federal Constitutional Law “On the Constitutional Court of the Russian Federation” in 2020. The conclusion is substantiated that the appeal to law enforcement practice contributes to the adoption of more motivated and balanced decisions by the Constitutional Court.

Reichweite und Grenzen der völkerrechtskonformen Interpretation in Österreich

According to case law and doctrine, there is a principle of interpreting domestic law in con-formity with international law in Austrian law. This principle follows in particular from Ar-ticle 9 para. 1 of the Austrian Federal Constitutional Law and aims at preventing violations of international law as far as possible. All international law that has become binding for Aus-tria by way of Articles 9 and 50 of the Federal Constitutional Law can serve as a standard of interpretation in conformity with international law, regardless of whether it is directly appli-cable. Inversely, all domestic law must be interpreted in conformity with international law. This obligation is independent of the domestic law’s rank in the hierarchical structure and thus also includes constitutional law. The legal control of the principle of interpretation in conformity with international law is proceduralised. This means that those who apply the law have procedural obligations to take the relevant international into consideration and to pro-vide reasons for their respective decisions.

Challenges of holding the presidents of general jurisdiction courts liable to disciplinary measures and termination of their powers in the Russian Federation

The article examines the challenges of holding the presidents of general jurisdiction courts liable to disciplinary measures and issues of terminating their powers. It is shown that the legal status of the presidents of general jurisdiction courts encompasses various elements, such as the procedure for terminating their powers, their liability, the procedure for replacing their post, their competence, and guarantees of independence. Five cases of termination of the powers of the president of a general jurisdiction court were considered: automatic suspension in the event of termination or suspension of powers as a judge, which may be directly tied to disciplinary proceedings, limitation of an office term, voluntary rejection of the position while retaining the powers of a judge, early termination of the court president’s powers while maintaining his/her position as judge for failure to fulfill or inadequately fulfill his/her official duties, commission of an act defaming the honor and dignity of a judge, as well as in any other circumstances specified under federal constitutional law indicating the inability of a judge to perform his/her duties. Significant gaps in matters of early termination of the court presidents’ powers are evident in Russian judicial practice, as demonstrated by numerous examples. The matters concerning the disciplinary liability of the presidents of general jurisdiction courts are analyzed with respect to the procedures, grounds and peculiarities for holding both judges and court presidents liable. A practical view of the modern interpretation of the concept “disciplinary offense of a judge” is shown. Recommendations have been made to improve the Russian legislation that deals with the issues of disciplinary liability of the presidents of general jurisdiction courts and termination of their powers, with a focus on the Law of the Russian Federation on the Status of Judges in the Russian Federation of 1992.