Balancing religious freedoms: some examples from the practice of the Russian Constitutional Court

P. 259–268.

Antonov M.

This short analysis of the case-law of the RF CC allows distinguishing several pivotal axes around which is centred the argumentation of that Court. First, it is the constitutional order that delimits the freedoms of legal subjects with some mandatory requirements and this way makes triumph the collective over the individual. In the same vein the Court agrees to restrict the freedoms for the sake of national security that guarantees survival and development of the society. Nonetheless, collective rights are not equivalent to the collective interests (volonté générale, if to follow the terms of J.-J. Rousseau), these latter are represented not by collectives but by the State that stands both over the individuals and the collectives. The State may in its activities be guided by the underpinning social conventions, but this guidance is limited by the principle of reasonableness following which the State (in fact, its agents) can decide about the extent to which they are ready to recognise these social conventions as reasons for action. It can be interfered that in this aspect one may assert that in the reasoning of the RF CC the collective interest prevails over the individual one, and the both are subordinated to the reasonable guidance of the State. 

Keywords: constitutional law, Judicial Discretion, religious freedoms

Publication based on the results of: Нормы и аргументы в делах по защите религиозных свобод (2016)

In book

The principle of proportionality and the protection of the fundamental rights in the European states

Wroclaw: Wydawnictwo im. Angelusa Silesiusa, 2016.