Cоотношение правопорядков и иерархия международных и национальных норм: новые вопросы и подходы к их решению в практике Конституционного Суда России
Modern development of legal systems and their interaction raises new issues of both theoretical and practical nature. The participation of Russia in different integration units makes the Russian law enforcement bodies face new challenges, the attempts to offer solutions of which have been taken, in particular, by the Russian Constitutional Court. Again we face the issue on the hierarchy of constitutional and supranational norms, overcoming conflicts between them and interaction of national (first of all, constitutional) and supranational courts. In particular, in its decisions of 2015–2016 the Russian Constitutional Court took a step forward to a new legal methodology aimed at solving the conflicts between supranational acts (including those of the Eurasian Economic Union and the European Court of Human Rights) and constitutional approaches and provisions. This methodology is based on the counter-limits doctrine worked out earlier through the cooperation with the European Union and its Member States (including Germany and Italy). The article focuses on the analysis of theperspectives of this doctrine application and the degree of its sufficiency to solve potential conflicts between national and supranational norms. It is highlighted, among other conclusions, that the counter-limits doctrine, being rather a means of restraint and not of frequent use, serves rather as a tool to promote the dialogue of legal orders than to aggravate conflicts among them.
In 1998 Russia ratified the European Convention on Human Rights (ECHR) and subjected itself to the jurisdiction of the European Court of Human Rights (ECtHR). After a long phase of productive cooperation with the ECtHR, Russian elites started realizing that further transplantation of human rights norms and unconditional execution of ECtHR judgments may lead to dangerous and undesirable results, such as questioning of legitimacy of the current social and political order in Russia, excessive “Westernization” of social and legal norms, serious conflicts with prevailing conservative, traditional values in the Russian society. In this context the creation of a protective mechanism against the Strasbourg Court allowing Russian authorities to block or limit the legal effect of its judgments does not look surprising. Such mechanism was introduced in 2013-2015 and has already been tested several times. The Russian model of such “blocking mechanism” prescribes a central role of the Constitutional Court, which acts like a “guardian” of the Constitution and an “active legislator” ruling on the possibility and exact manners of enforcement of a given ECtHR judgment on behalf of the Russian Federation upon requests from courts and other State bodies. Under this model any judgment of the ECtHR can be declared by the Russian Constitutional Court non-enforceable in Russia if the following two conditions are met: 1) The ECtHR judgment is in contradiction with the Russian Constitution and 2) there are no alternative ways to avoid the conflict with constitutional provisions other than its non-enforcement. The Russian Constitutional Court insists that it has a “right to object”, which may be derived from the Russian Constitution and general principles of international law based on consent of States.
This paper addresses the processes by which the international community intervened and participated in the defining of Bosnian identity and the corresponding constitutional framework, as well as the continuous paradoxical tension between the ethnic local and claims to universalism of supranational legal norms. In particular, the 1995 Constitution and the architecture of its sovereignty have been contested through provisions of the European Convention of Human Rights. The analysis is further supported by the discussion of the architectonic structure of the Town Hall/National Library in Sarajevo that has had an important constitutional role since the collapse of the Ottoman period. The paper thus focuses on two sites for construction/deconstruction of Bosnian sovereignty: the constitutional framework and the more concretely visible architectural symbol of the Town Hall/National Library. This importance of a visual and spatial approach to Bosnian realities is carried further by the 1993 ‘Eulogy’ that Jean-Luc Nancy wrote for Sarajevo, as a site of the Mêlée.
The article focuses on the impact of the European Convention for the protection of human rights and fundamental freedoms on the Russian legal system, primarily - on the legislation in the field of justice delivery. The author draws attention to the preconditions of the ratification of the European Convention by the Russian Federation in 1998 and the role of highest courts in the implementation of the standards of the Convention to domestic legislation and case-law. The article gives different examples of the positive influence of the Convention to the judicial systems so the conclusion may be made about the progress and positive dynamics in this area.
The book analyses the position of the ECtHR which has been more and more confronted with criticism coming from the national sphere, including the judiciary. This culminated in constitutional court judgments declaring a particular ECtHR judgment non-executable, for reasons of constitutional law. Existing scholarship does not differentiate enough between cases of mere political unwillingness to execute an ECtHR judgment and cases where execution is blocked for legal reasons (mainly of constitutional law nature). At the same time, the discussion under EU law on national/constitutional identity limiting the reach of the former has been only loosely linked with the ECHR context. This book presents a new dogmatic concept - 'principled resistance' - to analyse such cases. Taking up examples from the national level, it strives to find out whether the legal reasoning behind 'principled resistance' shows enough commonalities in order to qualify such incidents as expression of a 'new paradigm'.
The article is devoted to a particular form of freedom of assembly — the right to counter-demonstrate. The author underlines the value of this right as an element of democratic society, but also acknowledges the risk of violent actions among participants of opposing demonstrations. Due to this risk, the government may adopt adequate measures restricting the right to counter-demonstrate, certain types of which are analyzed in this paper.
Development of standards of international controllability is reviewed in the article. Institutional approach is applied to development of international legal regime of Energy Charter. Definition of controllability is connected to development of international standards of dispute settlement, which are described in the article in detail. In connection with controllability, Russian interest, defense of investment in European Union and ecological investment encouragement, is reviewed in the article.
мировое управление и управляемость, Мировая экономика, международное экономическое право, энергетическая хартия, International control and controllability, International economics, international economic law, Energy Charter
международное частное право; недвижимость; ; школа бартолистов; бартолисты; теория статутов; статуарная теория/