In the present paper the author discusses in detail some of the transformations in the judiciary of Hungary, being a part of the large-scale constitutional reform. These transformations are evaluated both in terms of their potential effectiveness, and also in terms of compliance with European standards of fair trial. For that purpose, the author analyzes the current rules of judicial legislation in their systemic unity, the critical opinions of the Venice Commission and other expert and human rights institutions, as well as publications in scientific literature and media. The author dwells on three issues: the mechanism of the change of venue of cases, court clerks’ participation in the administration of justice and direct constitutional complaint.
The article contains rhetorical analysis of arguments employed in cases where restrictions on fundamental rights have been challenged. It starts with a short overview of how ‘restrictions’ are construed by different legal scholars in Russia, and a working definition of restrictions for the purposes of the analysis is given: it is understood as any narrowing of the scope of fundamental rights or their denial. In the next section the nature of legal arguments as rhetoric arguments is shown. Further, different types of conclusions drawn from valid and invalid premises and used with dialectic, sophistic or eristic purposes in attempts to justify restrictions of constitutional rights to freedom of assembly, freedom of belief and right to liberty and security of person in the texts of judicial decisions are analyzed. It is argued, that the purpose of correct legal arguments is to look at the problem from different perspectives, to find a just solution and to achieve the consent and adherence of the audience. Valid, or dialectic, arguments are contrasted with fallacies (sophistic and eristic conclusions). Then examples of these three types of reasoning from the texts of judicial decisions of Russian courts are adduced and analyzed. Dialectic argumentation is exemplified by the reasoning of the Constitutional Court in famous Dadin’s case on criminal prosecution for repeated participation in unauthorized, though peaceful, public gatherings. Sophistic arguments are illustrated by cases, where courts employed paraphrases and other types of misuse of terms in order to avoid procedural guarantees for the restriction of constitutional rights (similar to ‘stop and frisk’ instead of ‘arrest and search’), intentionally misinterpreted the positions of the ECtHR or provisions of the Russian Constitution, omitted significant parts in the structure of argument (used claims without warrants) or resorted to argument by division. Eristic arguments are present in cases, when purely formal considerations (for instance, such as use of the word “approved’ instead of “adopted”) serve as grounds for denial of constitutional rights. ’Differentiation between dialectic reasoning, aimed at finding a fair balance between conflicting rights and interests for the best solution of legal problem, and type of reasoning, which formally looks like the process of argumentation but de facto is not, allows to identify flaws in the process of judicial justification and to prepare convincing counter-arguments for upper national courts and the ECtHR. In some cases it also gives grounds for putting forward and sustaining the thesis, that grounds for imposed restrictions on fundamental rights laid outside the boundaries of law. In any case, use of eristic arguments is a clear evidence of unlawfulness of the restriction imposed, and use of sophistic arguments forces the audience to suspect partiality or absence of independence in judicial decision-making. However, dialectic style of reasoning cannot be predominant without judicial ethics, critical thinking, independent judiciary and real adversarial nature of judicial proceedings.
This article discusses the activity of the Constitutional Court of Ukraine at its present stage of development. The doctrine of judicial self-restraint, which was adopted by the Constitutional Court back in the late 1990s, is critically appraised. The main forms of judicial self-restraint that are used in common law countries – primarily in the United States – are examined and relevant court practices are analyzed. The author comes to the conclusion that there is a certain discrepancy between the democratic standards for the administration of justice in the Ukrainian modification of the doctrine of judicial selfrestraint. In this connection, the inconsistency and internal contradiction of the latter can be criticized. The paper also makes an attempt to analyze the definitions of the refusal to open proceedings in a case passed by the Constitutional Court in 2017. The slowdown in the pace of the work of the Constitutional Court has been associated with the phenomenon of “strategic escape”, which finds its expression in the activity of the constitutional jurisdiction body mainly due to the fact that the Court refuses to accept the most politically significant cases for consideration and delays – sometimes for years – consideration of those cases that are already underway. Particular attention is paid to the personal composition of the Court and the relationship between judges: it is stated that there are several “small groups”, the social interaction between which is not always free of conflict. In general, the conclusion is made about the crisis that Ukrainian constitutional justice finds itself in today.
The current crisis of constitutionalism as an apparent challenge to liberal democracy makes it important to understand its social origins, implications, and forms of protection. The book under review presents a broad vision of the problem and a comparative analysis of theoretical, institutional, and functional deviations of authentic liberal constitutionalism, including its values, principles, and incentives. A fundamental work on the nature of contemporary constitutional crisis, its causes, and practical outcomes in the erosion of principles, norms, and institutes, the book could be interpreted as an original encyclopedia of constitutional deviations of any kind deeply rooted in the scarcity of enlightenment, institutional disproportions, and in the target-oriented intentions of some political regimes to deconstruct, put under question, or limit the achievements of the liberal democracy. From this point of view, it should be appreciated as a courageous, profound, and rather sustainable criticism of constitutional conformism which ignore the very existence of illiberal legal transformation, diminishes its importance, or even approves it as a form of constitutional realism. That is why the book should be recommended as instructive reading not only for European intellectuals, but for Russian intellectuals as well. In this context the book shows how contemporary political regimes reduced the essence of liberal principles, parliamentary democracy, separation of powers, independent justice, and individual rights while keeping unchangeable all formal aspects of constitutionalism or even using them for the establishment of illiberal democracy. The implacable criticism of these deformations makes the book a good guide in the labyrinth of legal misunderstandings, manipulations, and hypocrisies at the epoch of populist democracy – instruction which could be equally useful for true adherents of constitutional order and for its authoritarian enemies. That makes the authors’ position rather ambivalent: on the one hand, they stay in a constant search for a standard legal remedy against the mentioned constitutional disease, while on the other hand they hope to find it outside the traditional legal framework in spontaneous psychological attitudes, mental prejudices, and even mistakes of constitution makers regarding such items as constitutional beliefs, fears, and nostalgia. This approach, based on a psychoanalytic vision of constitutionalism, perhaps could be useful for the understanding of constitutional pathologies but probably is not really instructive for rational constitutional constructivism as a calculated balance between benefits and loses of political elites in power. The reach of the empirical information of the book and the observation of the authors’ key ideas and arguments makes possible another conclusion: that reason, not suspicion, should be the first duty of the constitutionalist.
The amendments of 2020 to the Russian Constitution changed the model of separation of powers by strengthening the role of the Presidents as a real head of the executive and by weakening the role of the Chairman of the Government, introduced additional guarantees in the case of mpeachment or initiation of criminal prosecution, allowed him to stay in office for two more terms and also made the judiciary, including the Constitutional court, and the prosecution authorities dependent on him through the nomination and dismissal procedure. The move from mixed system of government to the presidential one was introduced in the public discourse as an insignificant and purely technical one, while the main emphasis was made on social and ideological blocks of newly introduced amendments. The necessity of them was justified in mass media and public statements of the government officials by the desire to improve the social security of Russian citizens, guarantee more serious protection of the state’s sovereignty from the foreign influence in the legal filed and constitutionalize traditional values, including the memory about the victory and heroism in Great Patriotic War as well as recognition of marriage solely as a union of man and woman. The article contains analysis of the so-called “social amendments” in the context of the theoretical views of legal scholars on social rights and casts doubts on constitutionalization of these rights in the chapter on federalism vis-à-vis their declaration in the first two chapters of the Constitution, which contains the list of fundamental rights, including social, economic and cultural ones. It is argued, that social policy issues could have been resolved within the existing framework of 1993 Constitution and the executive had enough powers to deal with them. In addition, the principle of solidarity of generations as a characteristics of the pension system, if introduced to the Constitution, would deprive the government of flexibility in the adjustment of this system to the economic situation, employment market and social structure of Russian population. Other proposed amendments are also disputable, because justiciable rights are now mixed in one chapter with norms, declaring goals, and such approach devaluates the text of Constitution as a directly applicable act. The indispensable connection of human rights with separation of powers is demonstrated in terms of classical constitutionalism. The analysis shows that social bloc of amendments was used to mask the amendments on separation of powers, which strengthen the powers of the President and allow the acting President to stay at power for two additional terms.
In 2020 European Commission for Democracy through Law (better known as The Venice Commission) celebrates its 30th anniversary. The article deals with the main stages of evolution of expert activities of the Commission especially after expanding the geography of its members (62 member states and several observes).
From the very first days of its existence, the European Commission for Democracy through Law (Venice Commission) has emphasized as a priority the effective functioning of democratic institutions through the implementation of the rule of law principles, especially in the field of constitutional law and the administration of justice.
According to statistics of the Commission in 2019 were adopted 43 documents, from them 6 thematic compilations of previous opinions, 22 opinions, 5 opinions amicus curiae, 7 reports, 3 guides and comments. The subject matter of these documents is diverse: constitutional reforms -2, state bodies - 4, constitutional justice and judicial system -20, human rights -10, other issues (elections etc) - 7. These data indicate an increasing variety of problems of expert activity of the Commission.
Expert assessments of the draft Constitution of the Russian Federation of 1993 were among the first opinions of the Venice Commission. Subsequently, the Venice Commission several times addressed the issues of the Russian constitutional system, as well as constitutional system of other states. The VC Report on the Rule of Law (2011) and the VC Rule of Law (2016) are of great importance.
Issues of the constitutional basis of the judiciary and its functioning are also priorities of the Venice Commission’s activity, especially in recent years, when relations between the judiciary and other branches of power have escalated in a number of European states. The article emphasizes that the 1993 Report on the independence of the judiciary and the role of the public prosecutors department is very important even now. The starting point of numerous VC opinions and reports in this area is to ensure the real independence of the judiciary and the judges themselves.
In recent years the activity of the Venice Commission has noticeably revived in the field of electoral law and organization of elections. The agenda includes not only several issues related to electoral systems, but also such acute problems as political corruption and abuse of administrative resources.
This article is devoted to the functioning of the judiciary in poorly studied political entities — unrecognized states. Particular examples of marginal statehood are reviewed, ranging from Colombian “selva” to separate areas of Donetsk and Lugansk regions of Ukraine. A typology of such judiciaries is shown, with the factors that prompt political elites of incipient state entities to create courts. The complexity of the ethical choice that a judge who was a servant of the “parent” state must make, when he or she enters the service of an unrecognized state, is emphasized. Corresponding statistics are given in connection with the transition of Ukrainian judges to the service of the selfproclaimed DPR and LPR. The author analyzes various options for the relationship of professional judges and young passionate followers endowed with de facto powers of judicial status. Particular attention is paid to partially recognized Kosovo as an example of the most successful construction of statehood and its own judicial system, in which, with agreement of the international community, even judges from developed Western countries took part. The paper considers the particularities of the legal development of the unrecognized states that have taken place, the main laws governing the transformation of their judicial systems from tribunals of separate armed groups into respectable structures that fit in well with the new institutional design. The article analyzes the practice of the European Court of Human Rights in connection with the legal nature of courts established in unrecognized states. It is significant that the Strasbourg Court takes an ambivalent position on this issue. On the one hand, it rejects the approach in which the decisions of such courts are rejected solely on the grounds that the territorial entities within which they are created are considered illegal from the point of view of international law. On the other hand, the ECHR only once, in the case of the courts of the Turkish Republic of Northern Cyprus, considered them “established by law”. The phenomenon of partisan justice, which is an extreme form of such courts and is carried out by militants in the so-called insurgent areas, is especially analyzed. The Colombian example shows that the structures of partisan justice may well coexist with the so-called community justice administered by representatives of the territorial community (peasant, Indian, etc.).