Constitution-transforming informal methods of changing the Constitution of the Russian Federation: between validity and constitutionality

2021 ◽  
Vol 30 (5) ◽  
pp. 42-75
Author(s):  
Dmitry Shustrov ◽  
Keyword(s):  
Russian Federation ◽  
Real Life ◽  
Theory And Practice ◽  
Constitutional Reform ◽  
Constitutional Court ◽  
Constitutional Change ◽  
Time Saving ◽  
The Russian Federation ◽  
The Government ◽  
Formal Procedures

The Constitution of the Russian Federation has been changed according to formalities and the rules established by it, although there are numerous examples of constitutional changes having been made outside of formal procedures. In the theory and practice of constitutional law, an approach has been developed according to which the constitution can be changed without formally changing its text — by changing its meaning. Such changes are called constitutional transformation and are carried out by informal methods of changing the constitution. They differ significantly from the formal methods of constitutional reform, since they are carried out not by the sovereign source of power but by the constituted power — by the legislative, executive, and judicial authorities. The article examines the main informal methods of changing the constitution: law, interpretation, convention. Constitutional transformation by informal methods of constitutional change is not provided for by the constitution, therefore it is unconstitutional. However, it becomes valid thanks to implementation by institutions established by the constitution, within the framework of constitutionally provided procedures and recognized as methods of constitutional change by other subjects of constitutional relations. If the subjects of constitutional relations are not in agreement with a constitutional transformation, they can overcome it through constitutional reform or (depending on the method) through an appeal to the constitutional court by which, if successful, an informal constitutional change becomes unconstitutional and invalid. Turning to informal methods, the government incurs costs in terms of the legality and legitimacy of the constitutional change, but at the same time it gains in terms of efficiency, time saving and the result obtained. The emergence of a “living”, “parallel” constitution, the lag of the formal constitution behind real life, the inadequacy of the constitutional text are the price paid for resorting to informal methods of constitutional change. It is important that resort to informal means does not become the norm. Constitutional transformation should be supplementary in nature, and appeal to it should be the last resort.

Emergency powers of the authorities of the constituent units of the federation (states) in Russia, the USA and Brazil amid the spread of a new coronavirus infection

2021 ◽  
Vol 30 (3) ◽  
pp. 86-107
Author(s):  
Alexander Merkulenko
Keyword(s):  
Russian Federation ◽  
The United States ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Emergency Powers ◽  
Lack Of Control ◽  
The Usa ◽  
Coronavirus Infection ◽  
The Russian Federation ◽  
The Government

Due to the new coronavirus pandemic, high alert regimes were introduced across the Russian Federation in spring 2020. These emergency regimes were established exclusively by the state bodies of the Russian Federation’s constituent units – federal authorities did not introduce their own emergency regimes. This decentralized strategy of fighting the pandemic was also introduced by the USA and Brazil. Their states, without the sanction of the federal government, and in the case of Brazil, ignoring its bans, set emergency restrictions similar to those in Russia. The legal regulation of emergency regimes existed before 2020, when constituent units of the federation (states) actively used their emergency powers. However, the regimes introduced during the fight against the pandemic were slightly different to previous ones. The restrictions on rights and freedoms within these regimes were so severe that not only their proportionality was questioned, but there were also doubts as to whether the regional level of the government had the authority to establish such strict restrictions. In addition, the pandemic exposed old problems and revealed new shortcomings in the legal regulation of emergency regimes: lack of control over the realization of the emergency regime by legislative (representative) authorities, and gaps in legislative regulation – notably in the establishment of possible restrictions and of a mechanism for scrutinizing their proportionality. All this raised questions about the proportionality of the established restrictions. The Constitutional Court of the Russian Federation resolved a very insignificant amount of the problems. While the United States and Brazil faced similar issues, the practice of scrutinizing implemented restrictions in these countries was more common. This article takes domestic and foreign experiences into account, while examining certain aspects of the establishment and the operation of regional emergency regimes.

scholarly journals The Strategy of Spatial Development of Russia: modernity and the legacy of the Soviet Settlement Doctrine

2018 ◽  
Vol 212 ◽  
pp. 04003 ◽  
Author(s):  
Mark Meerovich
Keyword(s):  
Economic Development ◽  
Urban Planning ◽  
Russian Federation ◽  
Spatial Development ◽  
Theory And Practice ◽  
Planning Theory ◽  
Contemporary Theory ◽  
Territorial Planning ◽  
The Russian Federation ◽  
The Government

The article criticizes the strategy of spatial development of Russia, legally stated in the government document “The Strategy of Spatial Development of the Russian Federation for the period up to 2030. A Draft Concept”, released by the Ministry of Economic Development (2016). The author argues that the Strategy only states the existing situation, but does not enumerate a set of measures that are to be undertaken to strengthen the possibility of implementing any development scenario, and does not outline the ways of making assumptions a reality. The paper proves that the postulates of the Soviet settlement doctrine and urban planning theory still deeply impact the contemporary theory and practice of territorial planning.

The Object and Subject of Public Control in the Russian Federation: Theoretical and Legal Issues

2019 ◽  
pp. 11-19
Author(s):  
Galina Komkova ◽  
Elena Berdnikova
Keyword(s):  
Social Control ◽  
Russian Federation ◽  
Constitutional Court ◽  
Control Activity ◽  
Public Control ◽  
First Case ◽  
The Subject ◽  
The Russian Federation ◽  
The Government ◽  
Governmental Institutions

Social control can be considered as a legal relationship, on the one hand, and as a kind of social control, on the other. In the first case, its object is information as a public good or object of legal action, and the subject is the acquisition by its participants of subjective rights and legal obligations arising during their interaction. In the second case, the object is a participant in social interaction, whose actions and decisions are monitored and evaluated by the supervisory authority, the subject being the legal status of the object, determined by compliance with the goals and objectives of the control activity. The article examines such legal gap as the absence of clear definitions of the object and subject of public control. According to the authors, the term «public authority», which appears in these definitions, is abstract and makes perception of certain objects of public control ambiguous. The category of «publicly significant functions» used by both the federal and regional legislators and the Constitutional Court of the Russian Federation is analyzed. From the position of the latter, even non-governmental institutions can perform these functions. The possibility of including the President of the Russian Federation in the list of objects studied by the authors is also being considered. It is concluded that, in general, his activities are not subject to public control, although there appear certain elements of parliamentary control while bringing the head of state to responsibility. The importance of competitive selection of civil servants with extensive public participation is emphasized. It is noted that the latter has no effect in appointing senior officials of the Government of the Russian Federation, and this may worsen the quality of its work. The authors give recommendations for improving legislation in this area.

Doctrine “counter-limits” and doctrine “ultra vires” in the context of protection of national constitutional identity

2020 ◽  
Vol 10 (6) ◽  
pp. 98-105
Author(s):  
OLEG Belosludtsev ◽  
Keyword(s):  
Russian Federation ◽  
Theory And Practice ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Foreign Experience ◽  
Margin Of Appreciation ◽  
The Russian Federation ◽  
The Right ◽  
Constitutional Identity

The  article is  devoted to  the  study of  the  connection between the  doctrine of  constitutional identity with the  doctrine of “counter-limits” and the doctrine of “ultra vires”. All these concepts are applied in the practice of European constitutional courts in cases related to the resolution of conventionally constitutional conflicts. Since the doctrine of “constitutional identity” in domestic theory and practice is in its infancy, in the author’s opinion, it is necessary to take into account the foreign experience of protecting national constitutional identity. And also carefully consider all related concepts, such as the doctrine of counter-limits and the doctrine of “ultra vires”, paying special attention to the topic of their relationship. The author, analyzing the doctrine of “counter-limits” and the doctrine of “ultra vires”, comes to the conclusion that these doctrines, along with other instruments for protecting national constitutional identity (the doctrine of the margin of appreciation), can be used in relation to the dispute between the Constitutional Court of the Russian Federation and the ECHR on “the right of the last word”.

scholarly journals The Constitutional Status of the President of the Russian Federation in View of the Constitutional Reform in Russia

2020 ◽  
Vol 10 ◽  
pp. 33-36
Author(s):  
Ruslan M. Dzidzoev ◽  
Keyword(s):  
Russian Federation ◽  
Large Scale ◽  
Constitutional Reform ◽  
Constitutional Amendments ◽  
Basic Law ◽  
Head Of State ◽  
Form Of Government ◽  
The Russian Federation ◽  
The Government ◽  
The Relationship

The article examines the constitutional status of the President of the Russian Federation in the light of the latest constitutional amendments that marked a large-scale constitutional reform in Russia, analyzes the new powers of the head of state in the sphere of formation and functioning of state authorities by comparing the previous and new versions of the Basic law of Russia, common standards of a democratic and legal state. A special place in the article is occupied by the analysis of the relationship between the President and the Government of the Russian Federation, the constitutional formula of the General leadership of the President and the Government of the Russian Federation. The study examines the participation of the President in the formation of the Federal Government in relation to the powers of the State Duma. It is noted that the new presidential powers from the position of a mixed (presidential-parliamentary) way of government may seem excessive, but they look natural from the perspective of the presidential form of government in Russia.

scholarly journals The Constitutional Court of the Russian Federation as a subject of constitutional responsibility

2020 ◽  
Vol 4 (4) ◽  
pp. 23-34
Author(s):  
Natalia A. Bobrova
Keyword(s):  
Russian Federation ◽  
Complex Analysis ◽  
Constitutional Reform ◽  
Constitutional Court ◽  
Democratic State ◽  
Russian President ◽  
Scope Of Application ◽  
The Russian Federation ◽  
The Right ◽  
Constitutional Legitimacy

The subject of the article is justification of the main elements of the constitutional responsibility of the Russian Constitutional Court in the context of constitutional reform. The purpose of the article is confirmation or refutation of the hypothesis that the Constitutional Court must be subject to constitutional responsibility. The methodology. The author uses methods of complex analysis of legislation, synthesis, as well as formal-logical and formal-legal methods. The main results, scope of application. Russia as a democratic state excludes the existence of legally irresponsible subjects of state power. It concerns the Constitutional Court of the Russian Federation. Legal irresponsibility characterizes only the absolute monarchy. The article comprehensively examines the problem of responsibility of the Constitutional Court of the Russian Federation, the reasons for the poor development of this institution in legislation and academic literature are also considered. The reasons for the Constitutional Court's dependence on the President of the Russian Federation as a "guarantor of the Constitution of the Russian Federation" have been systemized. The author considers duumvirate of guarantors of constitutional legitimacy as a nonsense. The reasons for the Constitutional Court's peculiar use of the law of the legislative initiative are considered. This initiative was used only in the direction of increasing the term of the powers of judges of the Constitutional Court from 65 up to 70 years. The life-long status of the President of the Court is seen as a violation of the principle of equality of judges, which is the most important guarantee of the independence of the Constitutional Court. Constitutional reform-2020 completed the process of dependence of the Constitutional Court on the President of the Russian Federation and the "second government" - the Administration of the Russian President. Some constitutional and legal torts of the Constitutional Court of the Russia are considered also. The author comes to the conclusion that judges of the constitutional court have a special responsibility - political, moral and historical. The main questions are need to be resolved: who has the right to state the torts of the constitutional court and what are the consequences of this statement?

scholarly journals Illegal Circulation of Amber, Jade or other Semi-Precious Stones, Precious Metals, Precious Stones or Pearls: Problems Determined by New Edition of Art. 191 of the Criminal Code of the Russian Federation

2021 ◽  
Vol 16 (3) ◽  
pp. 97-109
Author(s):  
A. V. Chernov ◽  
S. V. Gabeev
Keyword(s):  
Russian Federation ◽  
Economic Value ◽  
Precious Metals ◽  
Criminal Code ◽  
Theory And Practice ◽  
Criminal Prosecution ◽  
The Russian Federation ◽  
The Government ◽  
Definition Of ◽  
Precious Stones

Changes made to Art. 191 of the Criminal Code of the Russian Federation at the end of 2019 in order to eliminate gaps in legislation, in fact, created even more conflicts in the theory and practice of applying criminal and administrative law. The legislator has not fully calculated the risks of the new edition of Art. 191 of the Criminal Code of the Russian Federation. The elimination of these risks requires more changes to the federal legislation, the adoption of new by-laws. Within the framework of Art. 191 of the Criminal Code of the Russian Federation the legislator created a contradiction regarding the qualification of illegal circulation of unique amber formations. Russian legislation does not contain a legal definition of semi-precious stones, clarification of their difference from precious stones. The concept of precious stones does not prove to be successful, since it contains a list-based reference of a particular stone to the category of precious stones, which does not always really reflect the economic value of a particular mineral. The list of semi-precious stones at the level of the Government of Russia has yet to be approved. Taking into account the administrative prejudice as one of the conditions for criminal prosecution for illegal trafficking in semiprecious stones, it should be the same with the list of semi-precious stones established to bring an individual to administrative responsibility for similar offenses. The legislator did not pay attention to the issues of delimiting jewelry and household products and scrap of such products from the subject of crimes under Art. 191 of the Criminal Code of the Russian Federation. An even greater problem is the inconsistency between the norms of administrative and criminal legislation on liability for illegal trafficking in semi-precious stones.

scholarly journals Discussing the Political and legal importance of the 2020 Russian Constitutional Reform

2021 ◽  
pp. 24-35
Author(s):  
Gyul'naz Eldarovna Adygezalova ◽  
Marina Mikhailovna Kuryachaya ◽  
Ruslan Mukharbekovich Dzidzoev ◽  
Irina Valerevna Shapiro
Keyword(s):  
Russian Federation ◽  
Legal Regulation ◽  
Constitutional Reform ◽  
Constitutional Court ◽  
State University ◽  
Russian Scientific ◽  
Protection Of Human Rights ◽  
Municipal Law ◽  
The Russian Federation ◽  
Scientific Practical

This article provides an overview of the speeches given by the participants of the All-Russian Scientific Practical Conference including international members “2020 Russian Constitutional Reform: political and legal importance” held remotely on December 4, 2020 by the Department of Constitutional and Municipal Law of Kuban State University jointly with the Interregional Association of Constitutionalists of Russia in Krasnodar Krai. The author describes the key provisions of the reports of the Russian and foreign participants, as well as messages received by the organizational committee of the conference. The general conclusions on the conference results are formulated. In the course of discussions were outlined the primary theoretical problems and practical aspects of constitutional legal development, as well as the trends of further improvement of the legislation. Within the framework of the discussion of 2020 constitutional reform, the participants placed emphasis on the peculiarities of modern Russian constitutionalism, its historical and theoretical aspects; questions of social and civil activism, expansion of the constitutional principles of civil society; renewal and transformation of the entire system of legal regulation; enhancement of the social component in the Constitution; consolidation of the unity of public authority; changes in the judicial system, broadening of competence of the Constitutional Court of the Russian Federation; networking of public legal relations; protection of human rights and fundamental freedoms, guarantees of rights and support of particular categories of Russians (minors, compatriots residing outside of Russia, etc.); correlation between the norms of international and national law. A number of participants gave attention to voting on the amendments to the Constitution of the Russian Federation.

scholarly journals Constitutional Reform 2020 in Russia (Selected Issues)

2020 ◽  
Vol 15 (8) ◽  
pp. 22-31 ◽  
Author(s):  
V. V. Komarova
Keyword(s):  
Russian Federation ◽  
Separation Of Powers ◽  
The State ◽  
Constitutional Reform ◽  
Constitutional Court ◽  
Public Power ◽  
Constitutional Level ◽  
The Russian Federation

On the basis of the analysis of Law of the Russian Federation on Amendment to the Constitution of the Russian Federation as of March 14, 2020, No 1-FKZ “On improvement of regulation of certain issues of organization and functioning of public power,” legislation, acts and legal standings of the Constitutional Court of the Russian Federation, as well as the practice of transforming the Constitution of Russia, and Presidential directives, the author investigates some issues concerning the Constitutional Reform 2020 initiated by the Head of the State. The paper examines the issues of the new constitutional approach to the implementation of the principle of separation of powers, some additional powers of the President of Russia in the context of their expansion. The author argues her view concerning consideration of some legal phenomena rooted in the legal reality of Russia at the constitutional level on the example of the terms “public power” and “instructions of the President of the Russian Federation.” The author monitors the dynamics of formation and manifoldness of instructions of the President of the Russian Federation. The paper highlights some terms and definitions that are new for the constitutional level, some of which can be considered as goals in the development of public and state life. The paper formulates author’s assessments and conclusions, author’s opinion concerning the ongoing transformations of the Constitution of Russia and, at the same time, it is proposed to continue scientific discussions devoted to the implementation of the proposed constitutional novellas.

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