Practice Of Constitutional Courts Research Articles

Конституционная неизменяемость и материальные пределы изменения конституции в практике органов конституционного контроля. Часть II

The article deals with a comparative legal study of constitutional unchangeability and material limits of constitutional changes in the practice of constitutional courts. The material limits of constitutional changes are prohibitions on changing certain constitutional norms. The unchangeability of constitutional norms is not identical with their eternity. Unchangeable constitutional norms cannot be changed within the framework of the current constitution, but can be revised in a particularly complicated manner, in fact, meaning the adoption of a new constitution. The first attempts to formulate the material limits of constitutional changes can be found already in the first constitutional acts of the late 18th — 19th centuries, however, the practice of establishing material limits of constitutional changes reached its spread only in the second half of the 20th century. Being provided for in constitutional law, the material limits of constitutional changes are explicit, i.e. established in the constitution and/or legislation, and/or implicit, i.e. proclaimed in the practice of constitutional courts.

The Right to a Healthy Environment in the Hungarian Constitution

The aim of the study is to present the development of the environmental law institutions founded up to the present day. Regulations concerning the protection of the environment had first been defined on international level before they appeared in the national legal system. Basic questions of environmental law are being analysed in this study. The history of environmental law is reviewed briefly from the 1950s to the present day both in international and national aspects as well as the constitutional foundation of environment protection within the right to a healthy environment and its Constitutional Court practice. This study will not touch upon the detailed study of the underlying principals of the national environmental law.

Correlation of the principles of territorial integrity of states and self-determination of peoples in international law

The article presents a comparative analysis of the principles of territorial integrity of states and self-determination of peoples in terms of international law. The principle of equality and self-determination of peoples, as well as the territorial integrity and inviolability of state borders, are among the basic principles of international law.
 At first glance, there is a certain contradiction between the exercise of the right of peoples to self-determination and the principle of territorial integrity of states, which provides that the territory of the state cannot be changed without its consent. The inability of the parties to find a peaceful solution to such a conflict leads to an increase in national conflicts, which often escalate into a military confrontation.
 From the content of the provisions of international law, it becomes clear that the principle of territorial integrity is aimed solely at protecting the state from external aggression. It does not apply only to those states that do not ensure the equality of the peoples living in them and do not allow free self-determination of such peoples. Conversely, if the state adheres to this principle in its activities, it is impossible to dismember it and violate its territorial integrity, "hiding" under this principle, because this state has already given peoples the right to express themselves within its borders.
 The right of the people to self-determination means that each nation is free to determine, without outside interference, its political status and to pursue its economic, social, and cultural development.
 In turn, the UN Millennium Declaration in fact spoke in favor of an only anti-colonial and anti-occupation interpretation of the principle of self-determination of peoples.
 Thus, the principle of the right to equality and self-determination of peoples does not encourage separatism and secession as a mandatory form of self-determination; on the contrary, the right to secession is directly limited to special cases, such as decolonization, the struggle against occupation and the racist regime.
 The same is confirmed in the practice of constitutional courts of states.

The role of language in providing intelligibility and certainty of normative legal acts

Clearness (intelligibility) and certainty of content are required from normative legal acts in the contemporary legal doctrine and in judicial practice (especially in the practice of constitutional courts). These requirements primarily concern language of texts of normative legal acts, as most lawyers find guarantees of accessibility for understanding by most of addressees in the textual fixation of legal norms. The question of how texts of normative legal acts can provide this — the question lying on the border between law and linguistic — is not answered today. Lawyers focus on ways and means of interpretation of texts, and these ways and means are treated as universal principles and dogma, but this is a solution for extraction of legal norm that often does not guarantee certainty and usually does not provide intelligibility. This article demonstrates rules of making normative acts which can provide intelligibility and certainty as interconnected but autonomous and independent requirements to legal texts basing on joint legal-linguistic researches of intelligibility and certainty of legal texts. There is a tension between requirements of intelligibility and certainty, though it should not be exaggerated, as the effective measures providing these two do not conflict and could be realized together. Fulfilling these requirements working out all normative acts should be accompanied with description of their meta-normative parameters, inter alia — description of addressees of normative prescriptions of norms of these acts as well as signs of occurrences, conditions and circumstances significant for the content of legal norms and its applying.

Az emberi méltóság és a személyiségi jogok összefüggései (alkotmányi és polgári jogi szabályozásuk kritikai értelmezése)

The issue indicated in the title of the study is essentially a complex of legal problems, which raise several questions about the concepts used, such as: What is human dignity? What rights can be derived from it? Can we talk about the right to human dignity? What is personhood? What are the personality rights? How is human dignity related to the personality rights? The study examines the problem from the perspective of Romanian legislation and Constitutional Court practice.

Доктринальный подход к соотношению национального и международного права в свете конституционных поправок

The article analyzes the Law of the Russian Federation on the amendment to the Constitution of the Russian Federation of March 14, 2020 No. 1-Federal Constitutional Laws «On Improving the Regulation of Certain Issues of the Public Power Organization and Functioning». The author carries out the theoretical and legal analysis of the Russian Federation Constitutional Court practice and the legislation adopted in view of this practice. It is noted that the amendments added to the Constitution of the Russian Federation reflect the official doctrine based on the recognition of the priority and supremacy of the Russian Federation Constitution in the legal system of the country. The author agrees that representatives of economically and militarily strong states have a significant influence on the development of international law, expressing the foreign policy doctrines of their states, while building a dual model of behavior: in relation to themselves – the priority of national law, in relation to other countries – the priority of international law. Under these conditions, the doctrine becomes a universal tool that connects the national and international legal spheres. It is necessary to recognize the ability of the doctrine to ensure the individualization, self-identification of the domestic legal system, the convergence of the Russian legal system and the systems of international public and private international law.

Protection of Socio-Economic Rights by the Constitutional Court of the Russian Federation

The article studies practice of the Constitutional Court of the Russian Federation in the field of socio-economic rights. The statistical data analysed illustrates the ever-present socio-economic theme among constitutional complaints lodged with the Constitutional Court, with the lowering of overall proportion of such complaints and increasing of the number of such complaints related to defence of property. Such statistics appear to be consistent with the Court’s role in the ongoing transition from Soviet-style planned economy to free market, which implies a substantial shift of obligations connected with property management and social responsibilities from the State to citizens themselves. It follows from the Constitutional Court practice and doctrine that such shift should be done delicately, giving the citizens sufficient period of time to adapt to the changes. In the article, the author focuses on the following categories of complaints considered by the Constitutional Court of the Russian Federation: protection of the right to private property and protection of the right to pension provision. The author observes that the delicate balance that needs to be preserved when dealing with the cases of this type and the slow-pace nature of the transition process often results in criticism towards the Court, notwithstanding the rationale of its decisions. It follows that such criticism is somewhat natural; what matters is the Court’s understanding of its mission in the socio-economic field, and maintaining balanced and well-reasoned approach in development of its case-law.

Fluid Borders of National-Cultural Autonomy: The Legal Status of National Minority Councils in Serbia

AbstractThis article gives an overview of the current position of minority self-governance within the Serbian legal order and its multilevel governance structure, with a particular focus on issues deriving from the missing legal determination of national minority councils. Although Serbia’s 2009 Law on National Minority Councils was welcomed by the international community, both national minority councils and public agencies have from the very beginning of its operation expressed serious concerns relating inter alia to the unspecified legal status of the councils. This has resulted in frequent misunderstandings in practice and, rather than being real self-governments of national minorities under public law, the councils are usually treated as nongovernmental organizations (NGOs) or organizations under the influence of political parties. Instead of presenting (international) political and social scientific approaches to the legal character of non-territorial autonomy in general, the article focuses on concrete legislative solutions and Constitutional Court practice regarding issues relevant to the de jure status of national minority councils in Serbia, such as election rules, competences, and funding.

Constitutional and Legal Aspects of State Control and Supervision Activities (Legal Positions of the Constitutional Court of the Russian Federation)

The presented article is devoted to the analysis of the legal positions of the Russian Federation Constitutional Court regarding the constitutionality of Russian legislation norms in the field of control and supervision activities. The generalization of the Constitutional Court practice of the Russian Federation allows you to group the decisions of the highest constitutional control body on several key issues: the limits of discretion by the legislator and law enforcer, the legal nature of state control and supervision measures, the balance of public and private interests in the sphere of relations under consideration and the guarantees of this balance. The team of authors concludes that the resolution of these problems is impossible without the Constitutional Court determining the content of a number of key concepts, developing the methodology for various constitutional principles and value balancing and, in general, focused efforts to constitutionalize Russian legislation.

The role of international human rights law in South Korean constitutional court practice: An empirical study of decisions from 1988 to 2015

While both international human rights law and constitutional law protect fundamental rights of individuals, it remains a question to what extent and for what purpose constitutional justice uses IHR instruments. This article offers empirical research on the use of IHR instruments with a case study of South Korea. Quantitative and qualitative analyses were conducted for all sixty-five decisions from the Constitutional Court of Korea that mentioned IHR instruments from 1988 to 2015. Findings show that IHR instruments played a supportive but limited role in those decisions. In terms of their role in revoking domestic laws, IHR instruments were supportive but not conclusive in reaching final conclusions. The CCK showed resistance in cases of labor rights and those concerning the national security threat from North Korea despite international pressure. In the same vein, it was not statistically supported that decisions mentioning IHR instruments would have a different rate of winning a case than decisions that did not mention them. IHR instruments, however, do have a positive effect on the CCK decisions. They enriched constitutional debate, providing persuasive authority in various contexts. IHR instruments were more successfully incorporated in the CCK decisions when they were indirectly applied as interpretative tools to the Korean Constitution than when they were directly applied. The findings show guidance and possibilities for the positive use of IHR instruments in national constitutional courts. Meanwhile, resistance to IHR law in deeply rooted issues suggests that we need other methods to harmonize IHR law and domestic law.

DISTINGUISHING CONSTITUTIONAL AND STATUTORY INTERPRETATION IN JUDICIAL REVIEW CASES: A BLURRED BOUNDARY LINE

The establishment of the Constitutional Court to hold power of reviewing the constitutionality of Laws raises discourse on the distinction between constitutional interpretation and statutory interpretation. In judicial review cases, the separation, either in common law or civil law tradition, between the two interpretations is not clearly distinguished. The Indonesian Constitutional Court, in judicial review decisions, shows that the Court does not only interpret constitutional provision. In a number of decisions, the Court has put more emphasis on the use of statutory interpretation. The essay discusses the Constitutional Court practice in the use of constitutional interpretation and statutory interpretation on judicial review cases.Keywords: Constitutional Court, judicial review, constitutional interpretation, statutory interpretation.

De iure potvrđenost multikulturalnog karaktera AP Vojvodine - kritički prikaz (ne)postojećih normativnih nadležnosti autonomne pokrajine u oblasti manjinskih prava

The Constitution of the Republic of Serbia from 2006 grants the autonomous province to determine additional rights of members of national minorities by provincial regulations, under the law and in accordance with the Constitution. The main topic of this paper is how this competence has been realized in practice; or in other words, whether the Autonomous Province of Vojvodina has succeeded in preserving its national, cultural and historical specialties through an active norm-making, even with lack of legislative power, and whether the national legislator has been a partner and provided an adequate framework for this activity. Because the Constitutional Court was dealing with these issues from different perspectives, particular attention is devoted to its rulings and contradictory interpretations, concerning the legal borders of the role/autonomy of the province in saving, promoting and developing its de facto multicultural character. The goal of the paper is to provide a descriptive overview, together with a critical analysis of competences of the AP of Vojvodina in the field of minority education, culture, media and official use of minority languages, with special focus on normative opportunity of the autonomous province in accordance with the valid legal framework and Constitutional Court practice.

ANALYSIS OF CONSTITUTIONAL COURT LEGAL POSITION OF THE RUSSIAN FEDERATION ON EXTREMIST CASES

Extremist cases are characterized by a set of features: a wide range of various criminal actions, their proof circumstances complexity, an ambiguous standard and legal regulation and other difficulties. This is a reason of diverse judicial and investigative practice formation. After analysis of judicial and investigative practice author reveals a num- ber of regularities which peculiar for affairs of this category. On the basis of all materials considered by the Constitutional court of the Russian Federation (46 cases on complaints consideration for the period from 1993 to 2017) the author analyses features of complaints and statutes which are the subject at appeal. Practice synthesis of the Constitutional court of the Russian Federation on cases of anti-extremism legislation and description of legal position of the Constitutional court is a result of done analysis. The author reveals and describes substantial aspects of complaints which have been rejected by the Constitutional court. Recommendations about complaints preparation and submission are stated. Special attention is paid to those circumstances which are the basis of the Constitutional court practice and are standard causes of failure in complaint consideration. According to analysis practice results of the Constitutional court of the Russian Federation the following provisions are proved: 1) practice of complaint consideration by the Constitutional court on cases of extremist offenses was already created and on certain questions is constantly reproduced in decisions, 2) law-linguistic uncertainty of anti-extremism legislation isn't an obstacle to its application, 3) results of judicial and expert researches are crucial for circumstances state and existence in expert practice of numerous collisions on similar affairs isn't a subject for the appeal in the Constitutional court. The research is done with financial support of RHSF on the agreement No. 16-33-01150.

Der Einfluss und die Stellung des Völkerrechts in den Verfassungssystemen einiger ost- und Mitteleuropäerfassungssystemen Einiger Ost- und Mitteleuropäischer Transformationsstaaten

Der Einfluss und die Stellung des Völkerrechts in den Verfassungssystemen einiger ost- und Mitteleuropäerfassungssystemen Einiger Ost- und Mitteleuropäischer Transformationsstaaten

Formation of the Concept of Information Sovereignty of the State

The article is devoted to the comparative analysis of the concepts of information sovereignty of thestate (of state sovereignty in the information space) in the foreign Russian political and legal science, as well as their legislative implementation in the Russian Federation. The author described a cyclicchange of sovereignty and globalization trends in the legal regulation of information relations, includingthose existing at the present stage of sovereignty, doctrinal highlighted the problem of determiningthe nature and content of the category information of the sovereignty of the state, its difference fromthe traditional territorial binding national sovereignty. Based on the analysis of the Constitutional Courtpractice, the analysis highlights the properties (attributes) of the state. The paper consistently examinesforeign approaches to the definition of the information content of the sovereignty of the state in termsof development of information relations with the 1980s to the modern concepts of sovereignty and thesovereignty of the digital data, carried out their periodization, chronologically associated with the developmentof information technologies. The necessity of development of publicly-legal doctrine of the sovereigntyof the information, as well as the conclusion that the implementation of state sovereignty in theinformation space should be carried out by means of information and functions of the state informationpolicy, characterized by the existing scientific approaches to the content of these categories. Based onthe analysis of the Russian legislation, the analysis highlights the elements of the legal institutionalizationof state sovereignty, including the definition of its scope; attribution of sovereignty to the purposesand principles of the legal regulation in the relevant field; assignment of protecting the sovereignty ofthe powers of public authorities. Conducted on the basis of the abovementioned analysis of the keyelements of allocated federal laws in the sphere of information relations has shown the absence oflegislative institutionalization of information sovereignty of the state in these federal laws. To ensure theinstitutionalization of the legislative sovereignty of the state of the information substantiated a numberof suggestions for improving the federal laws in the sphere of information relations.

Зеркальный лабиринт муниципальной реформы: конституционно-судебная практика как основа для поиска выходов

Зеркальный лабиринт муниципальной реформы: конституционно-судебная практика как основа для поиска выходов

Zabrana rada i djelovanja političkih stranaka - komparativni prikaz nadležnosti ustavnih sudova zemalja iz okruženja

In the contemporary constitutional and democratic state, political parties represent one of the most important organizations of modern political action. Their constitutionalization, or introducing into the constitution the provisions which govern the principal position of the political parties and which recognize their (democratic) role in the constitutional system, influenced the appearance of different mechanisms of control and prohibition of their operation and activities. This paper analyzes the position and role of contemporary constitutional courts in controlling the operation and activities of political parties. The analysis of the practice of constitutional courts which exercise these powers, as well as of the practice of the European Court of Human Rights and of the opinions of the Venice Commission expressed by “Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures” is essential if we wish to critically evaluate the place and role of modern constitutional courts in the control of operation and activities of political parties.

Democratic theory and constitutional adjudication

By focusing on the practice of constitutional courts this paper aims to present a qualitative-analytical tool which could contribute to a better (self-)understanding and evaluation of constitutional adjudication. Since the specific nature and the very existence of constitutional review necessitates an a priori reflection on the legitimacy, exact function and role of constitutional courts within the democratic system, a multidimensional model of democracy might give some insight into the theoretical background of the court’s decisions in this respect. This level of analysis focuses simply on the question of which ideal type of democracy might be inherent or envisioned in decisions taken by judges of constitutional courts.

Judicious Avoidance

ABSTRACTThis article describes and evaluates the Constitutional Court's practice of ‘decisional minimalism’, a practice of avoidance of decisions that do not have to be made, avoidance of first-order reasoning when decisions can be made on a deductive or analogical basis and avoidance of large-scale theorising when substantive decisionmaking is unavoidable.The debate which took place when we heard the present matters spread far and wide over the field of pornography and obscenity, exploring every visible pocket of it and stepping in the process on many prickly points. We should tread no such path in turn. To do so is not only unnecessary, and to be avoided on that conventional count, but also unwise.Case v Minister of Safety and Security (Didcott J)