scholarly journals Content and forms of participation of the Constitutional Court of the Russian Federation in lawmaking

2021 ◽  
Vol 21 (2) ◽  
pp. 223-231
Author(s):  
Vitalii B. Sychev ◽  
Keyword(s):  
Public Life ◽  
Special Kind ◽  
Constitutional Court ◽  
Legal Research ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Legal Norms ◽  
General Scientific ◽  
The Russian Federation ◽  
Legislative Initiative

Introduction. The judicial constitutional review authorities ensure the supremacy and direct application of the constitutions. They also participates in lawmaking activities. Constitutional review authorities can participate in lawmaking activities directly or circumstantially. There are two kinds of the direct participation of such authorities in lawmaking activities: legislative initiative and participation in lawmaking activities in connection with the implementation of the constitutional review. The methodology of research is based on general scientific and special legal research methods. Theoretical analysis. Some authors note that the decisions of the constitutional review authorities can modify conditions of public life. Authors often emphasize that court decisions that rules certain norms as unconstitutional have the same goals as statutory acts. Empirical analysis. Constitutional courts administer a special kind of lawmaking, such as “positive”, “negative”, “adjusting” and “interpretative” lawmaking. “Positive” lawmaking is connected with the adoption of statutory acts, which regulate the activities of the constitutional courts. “Negative” lawmaking consists in ruling certain legal norms and sources of law unconstitutional and making them void. By means of “adjusting” lawmaking constitutional courts do not rule the norms as completely unconstitutional, but constitutionally interpret them. “Interpretative” lawmaking consists in clarifying legal norms of constitutions. The constitutional review authorities may also provide recommendations to the legislative authorities. Results. The constitutional review authorities can directly participate in lawmaking activities as a legislative initiative or in connection with the implementation of the constitutional control as “positive”, “negative”, “adjusting” and “interpretative” lawmaking. Circumstantial participation of such authorities in lawmaking activities is administered by adopting special messages.

The Kelsenian Model of Constitutional Review in Times of European Integration – Reconsidering the Basic Features

2019 ◽  
Vol 19 (1) ◽  
pp. 7-37
Author(s):  
Aleksandra Kustra-Rogatka
Keyword(s):  
European Integration ◽  
Legal System ◽  
Constitutional Court ◽  
Centralized Control ◽  
Constitutional Treaty ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
Legal Norms ◽  
Basic Features ◽  
The Eu

Summary The paper deals with the changes in the centralized (Kelsenian) model of constitutional review resulting from a state’s membership of the EU, which unequivocally demonstrates the decomposition of the classic paradigm of constitutional judiciary. The main point raised in the paper is that European integration has fundamentally influenced on the four above-mentioned basic elements of the Kelsenian model of constitutional review of legislation, which are the following: the assumption of the hierarchical construction of a legal system; the assumption of the supreme legal force of the constitution as the primary normative act of a given system; a centralised model of reviewing hierarchical conformity of legal norms; coherence of the system guaranteed by a constitutional court’s power to declare defectiveness of a norm and the latter’s derogation. All its fundamental elements have evolved, i.e. the hierarchy of the legal system, the overriding power of the constitution, centralized control of constitutionality, and the erga omnes effect of the ruling on the hierarchical non-conformity of the norms. It should be noted that over the last decade the dynamics of these changes have definitely gained momentum. This has been influenced by several factors, including the “great accession” of 2004, the pursuit of formal constitutionalization of the EU through the Constitutional Treaty, the compromise solutions adopted in the Treaty of Lisbon, the entry into force of the Charter, and the prospect of EU accession to the ECHR. The CJEU has used these factors to deepen the tendencies towards decentralization of constitutional control, by atomising national judicial systems and relativizing the effects of constitutional court rulings within national legal systems. The end result is the observed phenomenon, if not of marginalisation, then at least of a systemic shift in the position of constitutional courts, which have lost their uniqueness and have become “only ones of many” national courts.

Hungarian Constitutional Court: Keeping Aloof from European Union Law

ICL Journal ◽  
2011 ◽  
Vol 5 (3) ◽  
Author(s):  
László Blutman ◽  
Nóra Chronowski
Keyword(s):  
European Union ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Constitutional Review ◽  
Legal Norms ◽  
Legal Rules ◽  
Tier System ◽  
Domestic Law

AbstractWhile the European Union is in the process of carefully navigating among the various forms of sub-federalism, Member States - including recent ones like Hungary, trying to find an equilibrium between their sovereignty and European supranationalism - have to cope with possible conflicts between their national legal systems and EU law. Since Hungary's accession to the European Union, the Hungarian Constitutional Court has faced questions regarding the constitutionality of EU legal rules and conflicts between European and national legal norms. This article examines these issues and analyzes criteria of constitutional review that the Court has gradually set out in dealing with some of these conflicts. So far, it has established two principles marking the boundaries of future constitutional practice. First, it will treat the founding and amending treaties of the European Union as part of domestic law for the purposes of constitutional review, thereby setting up a two-tier system of legal rules applicable within Hungarian legal practice instead of a possible three-tier construction that would distinguish between national, international and European law. Second, in the absence of jurisdiction to review substantive (un)constitutionality (as opposed to procedural constitutionality), the Constitutional Court does not regard a conflict between domestic law and EU law as a constitutionality issue and this mandates the ordinary courts to resolve such conflict of a sub-constitutional nature. Taking these conclusions as starting points, this article sets out the possible types of conflicts that may occur between EU rules and other legal rules applicable in Hungary, weighing the constitutional relevance of these conflicts; it also outlines the directions along which the practice of the Hungarian Constitutional Court may develop in this respect.

CONSTITUTIONAL RESPONSIBILITY DETERMINATION AS A LEGAL RESPONSIBILITY TYPE: ON THE ISSUE STATEMENT

2018 ◽  
pp. 133-140
Author(s):  
N.E. Sadokhina
Keyword(s):  
Russian Federation ◽  
Special Kind ◽  
The State ◽  
Legal Responsibility ◽  
Constitutional Court ◽  
Legal Method ◽  
Legal Nature ◽  
The Russian Federation ◽  
Legislative Changes ◽  
The Stability

The relevance of the research topic is due to the uncertainty of the provision of constitutional responsibility in the system of legal responsibility types. The study purpose is to the legal nature analysis of constitutional and legal responsibility, allowing it to be viewed as a form of legal responsibility. The conducted research is based on general scientific analysis methods, deduction, and also private law – the formal legal method. So, on the basis of the analysis of the current legislation and law-enforcement practice, we conclude that the political and legal nature of constitutional responsibility is special. On the one hand, it is a form of legal responsibility and is applied to subjects of constitutional responsibility in cases provided for by constitutional norms. On the other hand, it helps to regulate relations that arise in the sphere of public administration, ensure the stability of the functioning of the state apparatus. It is established that this feature explains also the fact that constitutional responsibility can occur not only in case of an offense, but also in case of lawful behavior. It is determined that for consideration of the constitutional responsibility as a special kind of legal responsibility it is necessary to introduce a special procedural order of calling to account, including in particular the procedure for appealing the dissolution of the State Duma, giving the Constitutional Court of the Russian Federation the powers to consider such cases. And it is also necessary to fix a list of circumstances that may form the basis for a decision on mistrust in the Constitution of the Russian Federation. The conclusion is made that these legislative changes will underline the specificity of constitutional and legal responsibility and leave no doubt about its status as a kind of legal responsibility.

Equal to the Constitution: the Sources of Law of Highest Legal Force in the Russian Federation

2016 ◽  
Vol 4 (8) ◽  
pp. 0-0
Author(s):  
Михаил Пресняков ◽  
Mikhail Pryesnyakov
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Constitutional Law ◽  
The Other ◽  
Constitutional Court ◽  
Legal Norms ◽  
Other Hand ◽  
The Russian Federation ◽  
Juridical Acts ◽  
The Right

In article the question of validity of the Constitution of the Russian Federation and some other sources of the right which can also possess the highest validity is considered. In particular the author comes to a conclusion that legal positions of the Constitutional Court of the Russian Federation possess the highest validity and in total with the constitutional provisions represent the actual Constitution. On the other hand, both laws on amendments to the Constitution, and the universally recognized norms of international law on the validity stand below constitutional precepts of law. Acts of the Constitutional Assembly of the Russian Federation may in future be qualified as having the highest judicial effect. Such acts may abolish or change any provision of the present Constitution. At the same time the universally recognized norms of international law and the laws of the Russian Federation regulating amendments to the Constitution of the Russian Federation as independent juridical acts and sources of constitutional law are inferior as compared with the constitutional legal norms.

scholarly journals Filling the Hole in Indonesia’s Constitutional System: Constitutional Courts and the Review of Regulations in a Split Jurisdiction

2018 ◽  
Vol 4 (1) ◽  
pp. 27
Author(s):  
Tim Lindsey
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Civil Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
The Real ◽  
The Supreme Court ◽  
Constitutional System ◽  
Do So

The Indonesian constitutional system contains a serious flaw that means that the constitutionality of a large number of laws cannot be determined by any court. Although the jurisdiction for the judicial review of laws is split between the Constitutional Court and the Supreme Court, neither can review the constitutionality of subordinate regulations. This is problematic because in Indonesia the real substance of statutes is often found in implementing regulations, of which there are very many. This paper argues that that is open to the Constitutional Court to reconsider its position on review of regulations in order to remedy this problem. It could do so by interpreting its power of judicial review of statutes to extend to laws below the level of statutes. The paper begins with a brief account of how Indonesia came to have a system of judicial constitutional review that is restricted to statutes. It then examines the experience of South Korea’s Constitutional Court, a court in an Asian civil law country with a split jurisdiction for judicial review of laws like Indonesia’s. Despite controversy, this court has been able to interpret its powers to constitutionally invalidate statutes in such a way as to extend them to subordinate regulations as well. This paper argues that Indonesia’s Constitutional Court should follow South Korea’s example, in order to prevent the possibility of constitutionalism being subverted by unconstitutional subordinate regulations.

Part 3 Institutional Control of Constitutionalism, 3.1 Models of Institutional Control: The Experience of Islamic Countries

2012 ◽  
Author(s):  
Grote Rainer
Keyword(s):  
The United States ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Institutional Control ◽  
Constitutional Review ◽  
Islamic World ◽  
The United Kingdom ◽  
Islamic Countries ◽  
Almost All ◽  
Constitutional Adjudication

This chapter discusses constitutional review in Islamic countries. It covers the basic models of constitutional review; composition of constitutional courts; powers of constitutional courts; and effects of constitutional court decisions. It shows that introduction of constitutional review in the Islamic world has largely been pattered after foreign models, particularly of France (namely in the Maghreb countries and Lebanon), the United States (in Egypt and the Arab peninsula), the United Kingdom (Pakistan, Nigeria, Malaysia), and Germany (Turkey, Indonesia), with modifications to the particular political and cultural contexts of the respective countries. While almost all constitutional review bodies practice some form of constitutional review of legislation or another, most constitutions in the Islamic world still do not provide for access of individuals to constitutional adjudication.

Issues of Superion Courts of the Russian Federation when Implementing the Legislative Initiative

2020 ◽  
Vol 10 ◽  
pp. 32-41
Author(s):  
N. G. Stenichkin ◽  
Keyword(s):  
Russian Federation ◽  
Separation Of Powers ◽  
Practical Implementation ◽  
Legislative Process ◽  
Constitutional Court ◽  
Legal Method ◽  
The Russian Federation ◽  
Legislative Initiative ◽  
The Law ◽  
The Right

The problem. The concept of «issues of reference» is used in the Constitution of the Russian Federation when listing the subjects of the law of legislative initiative in relation to the judiciary. The legislation does not disclose or define this concept, which leads to discussion about its content and, as a result, raises questions about the practical implementation of the separation of powers principle in the legislative process. Aims and objectives of the study: we determined the limitations of the law of legislative initiative of the higher courts of Russia from the point of view the legal grounds for such restrictions, their subjects and legal consequences. Methods: we use both the common scientific methods (e. g. systemic, deductive) as the special-legal methods (formal, dogmatic, state-legal modeling method, comparative legal method etc.). Results: we conclude that «issues of reference» is a special constitutional legal term used in the Constitution of the Russian Federation to describe all functions of the certain branch of power or the public authority. This term in its content is broader than the concepts of «authority», «subjects of jurisdiction» and «jurisdiction». The use of the term «issues of reference» towards the higher courts, as subjects of the right of legislative initiative, does not allow us to assert the constitutional sense of existence various types of legislative initiative right, such as general right and limited (special) right. The practice of exercising the right of legislative initiative by the higher courts, as well as the applying the Procedure Rules of the State Duma of the Russian Federation does not provide for any restrictions on the right of courts to initiate bills. Russian legislation lacks mechanisms for applying the term «issues of reference» as an instrument restricting the constitutional right of the higher courts to participate in the legislative process. Also, such mechanisms are not reflected in the regulatory framework governing the activities of the higher courts. The term «issues of reference», applied to the legislative initiative right of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, does not imply any exemptions from the right to initiate bills given by the Constitution to other entities, but this term is used in the delimitation of legislative functions between the higher courts.

Some Aspects of the Transformation of Constitutional Legal Norms

Legal Concept ◽  
2021 ◽  
pp. 96-105
Author(s):  
Marina Mokoseyeva ◽  
Keyword(s):  
Public Relations ◽  
Constitutional Court ◽  
Russian Science ◽  
Legal Norms ◽  
Judicial Practice ◽  
New Type ◽  
The Russian Federation ◽  
Transformation Processes ◽  
Law Making

Introduction: the Russian doctrinal sources have been noting the formation of a new type of law-making for several years. It differs from other types in that amendments and changes to the constitutional norms are made without their direct changing. This type of law-making is called “transformation of constitutional norms”. The purpose of the study is to formulate the concept of transformation of constitutional norms and to identify the specific features and distinctions of this legal phenomenon. Methods: the methodological framework for the study is a set of methods of scientific knowledge, among which the main ones are the methods of comparison, analysis, and generalization of legal material. Results: the author’s position on the need to determine the features, limits, and distinctions of this institution in Russian science is based on the study of the modern legislation, as well as a large number of examples from judicial practice. Based on this approach to the study of legal material, the very concept of transformation of constitutional norms was studied, the ambiguities of the transformation processes were identified, and the features and limits of transformation were formulated. Conclusions: as a result of the study, the role of transformation as a regulator of public relations and a new type of law-making is revealed. The features, signs, and limits of the transformation of constitutional norms are established through the analysis of examples in the judicial practice of the Constitutional Court of the Russian Federation. It is determined that the transformation is temporary, can fill a legal gap, and has a specific mechanism of implementation, which is due to special forms of transformation (interpretation, application of legal positions, ratification, and implementation).

Legal responsibility in the legal system of Russia: some research results and project prospects

2021 ◽  
pp. 24
Author(s):  
Alexander V. Mal’ko
Keyword(s):  
Law Enforcement ◽  
Legal System ◽  
Current System ◽  
Basic Research ◽  
Legal Responsibility ◽  
Constitutional Court ◽  
Legal Norms ◽  
The Russian Federation ◽  
The Relationship ◽  
Relationship Interaction

The article contains the most important conclusions and results from a project supported by the Russian Foundation for Basic Research, on which a team of authors has been working since 2019. The features of the relationship, interaction and existing contradictions between legal responsibility and the legal system are determined. The existing contradictions between the doctrinal conclusions about the principles of responsibility and their implementation in the current system of legal norms and law enforcement practice have been investigated. The practice of the Constitutional Court of the Russian Federation is generalized and its role in the mechanism of identifying legal defects of the institution of legal responsibility is established.

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