scholarly journals The Supremacy of the Constitution as a Basis of the Constitutional Legal Order in Russia

The article deals with theoretical issues related to the core of the rule of law – the constitutional legal order. The author views the latter as the result of implementation of constitutional legality, that is, the implementation of the provisions of the Constitution by all subjects of law, the exercise of their actions on the basis and in pursuit of the Constitution. The following criteria of the constitutional law and order are defined: the supremacy and direct effect of the Constitution; effective work of state bodies with a view to creating favorable conditions for the development of society and the realization of the rights and freedoms of citizens and their associations and the performance of their legal duties; ensuring inevitable bringing of offenders to justice. Special attention is paid to the fact that the principle of the supremacy of the Constitution that provides constitutional order can be understood in two aspects – material and formal, and their content is disclosed. It is concluded that even an ideal text of the Constitution cannot guarantee its supremacy without its embodiment in the actual constitutional law and order. Proceeding from the fact that the supremacy of the Constitution implies inadmissibility of distortion of the constitutional norms’ essence by current legislation, as well as their different understanding and application, the author justifies the assertion about the special role and responsibility of the Constitutional Court of the Russian Federation for the actual state of constitutional law and order. Claiming that the Constitutional Court has the right to apply any means and types of interpretation of the Russian Constitution, the author believes that the Court cannot change the content of the Constitution while maintaining the invariability of its text. The article substantiates the conclusion that the constitutional legal order presupposes stability of the Constitution, inadmissibility of frequent amendments that are not conditioned by objective necessity.

2020 ◽  
Author(s):  
Aidana Bakytova ◽  
Bolat Kushkaliyev

The article analyzes the principle of legal certainty, the constitutional presumption of knowledge of the Constitution of the Republic of Kazakhstan and laws, and the obligation to comply with them. The contribution of constitutional law scholars to the development of the constitutional theory is emphasized. The author studies the political, legal, and social essence of the Constitution of the Republic of Kazakhstan as a kind of legal and cultural phenomenon that determines the development of Kazakhstan's society and state after independence. The full constitutional and legal characteristics of the sovereignty of the Republic of Kazakhstan and the significance of the Constitution in its strengthening and development are given. As criteria of constitutional law called the supremacy and direct action of the Constitution; effective work of state bodies in order to create favorable conditions for the development of society and the rights and freedoms of citizens and their associations, the performance of their legal responsibilities; ensure the inevitability of bringing perpetrators to legal liability. Attention is drawn to the fact that the principle of the supremacy of the Constitution, which ensures constitutional law and order, can be understood in two aspects: material and formal; their content is revealed. It is concluded that even the ideal text of the Constitution cannot guarantee its supremacy without its implementation in the constitutional legal order. The author substantiates the conclusion that the constitutional law and order presupposes the stability of the Constitution and the inadmissibility of its frequent amendments that are not objectively necessary.


2020 ◽  
Author(s):  
Aidana Bakytova ◽  
Bolat Kushkaliyev

The article analyzes the principle of legal certainty, the constitutional presumption of knowledge of the Constitution of the Republic of Kazakhstan and laws, and the obligation to comply with them. The contribution of constitutional law scholars to the development of the constitutional theory is emphasized. The author studies the political, legal, and social essence of the Constitution of the Republic of Kazakhstan as a kind of legal and cultural phenomenon that determines the development of Kazakhstan's society and state after independence. The full constitutional and legal characteristics of the sovereignty of the Republic of Kazakhstan and the significance of the Constitution in its strengthening and development are given. As criteria of constitutional law called the supremacy and direct action of the Constitution; effective work of state bodies in order to create favorable conditions for the development of society and the rights and freedoms of citizens and their associations, the performance of their legal responsibilities; ensure the inevitability of bringing perpetrators to legal liability. Attention is drawn to the fact that the principle of the supremacy of the Constitution, which ensures constitutional law and order, can be understood in two aspects: material and formal; their content is revealed. It is concluded that even the ideal text of the Constitution cannot guarantee its supremacy without its implementation in the constitutional legal order. The author substantiates the conclusion that the constitutional law and order presupposes the stability of the Constitution and the inadmissibility of its frequent amendments that are not objectively necessary.


2020 ◽  
Author(s):  
Aidana Bakytova ◽  
Bolat Kushkaliyev

The article analyzes the principle of legal certainty, the constitutional presumption of knowledge of the Constitution of the Republic of Kazakhstan and laws, and the obligation to comply with them. The contribution of constitutional law scholars to the development of the constitutional theory is emphasized. The author studies the political, legal, and social essence of the Constitution of the Republic of Kazakhstan as a kind of legal and cultural phenomenon that determines the development of Kazakhstan's society and state after independence. The full constitutional and legal characteristics of the sovereignty of the Republic of Kazakhstan and the significance of the Constitution in its strengthening and development are given. As criteria of constitutional law called the supremacy and direct action of the Constitution; effective work of state bodies in order to create favorable conditions for the development of society and the rights and freedoms of citizens and their associations, the performance of their legal responsibilities; ensure the inevitability of bringing perpetrators to legal liability. Attention is drawn to the fact that the principle of the supremacy of the Constitution, which ensures constitutional law and order, can be understood in two aspects: material and formal; their content is revealed. It is concluded that even the ideal text of the Constitution cannot guarantee its supremacy without its implementation in the constitutional legal order. The author substantiates the conclusion that the constitutional law and order presupposes the stability of the Constitution and the inadmissibility of its frequent amendments that are not objectively necessary.


2016 ◽  
Vol 4 (8) ◽  
pp. 0-0
Author(s):  
Михаил Пресняков ◽  
Mikhail Pryesnyakov

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.


Author(s):  
Bumke Christian ◽  
Voßkuhle Andreas

This book provides a comprehensive summary of German constitutional law, in particular the case law of the German Federal Constitutional Court. It provides first-hand insight into the complex principles of the Basic Law, or Grundgesetz (GG), and an authoritative introduction to the history of the German constitution, the Basic Law, and the methodology of the Federal Constitutional Court. As well as an analysis of the general principles of German constitutional law, the book covers the salient articles of the German constitution and offers relevant extracts of the Court's most important decisions on the provisions of the Basic Law. It provides notes and discussions of landmark cases to illustrate their legal and historical context and give the reader a clear understanding of the principles governing German constitutional law. The book covers the fundamental rights catalogue of the Basic Law and offers a comprehensive account of its intellectual moorings. It includes landmark jurisprudence on the equal treatment of same-sex couples, life imprisonment, the legal structure of property, the right to assembly, and the right to informational self-presentation. The book also covers the provisions and respective case law governing the state structure of Germany, for instance the recent decisions on the prohibition of the far-right German nationalist party, and the Court's jurisprudence on European integration, including the most recent decisions on the OMT program of the European Central Bank.


Author(s):  
Сергей Петрович Субботин ◽  
Оганнес Давитович Мкртчян

В условиях достижения высоких показателей УИС особую роль приобретает институт Федеральной службы исполнения наказаний в части достижения и укрепления правопорядка в обществе. Представляется важным обеспечить выявление и предупреждение преступности за счет установления надежной охраны и надзора за осужденными, отбывающими наказание на территории объектов УИС. В связи с этим особая роль отводится функционированию КПП, обеспечивающих контроль за проходом людей и проездом транспортных средств на территорию объекта. Именно КПП идентифицируется как наиболее уязвимое место в части проникновения запрещенных предметов и веществ. Вышесказанное обуславливает актуальность исследования, связанного и изучением методов и средств, способных снизить число запрещенных предметов, доставляемых на территорию учреждений УИС за счет эффективной работы досмотровых групп. Цель исследования: изучение специфики работы досмотровых групп на КПП в учреждениях УИС и способов повышения их эффективности для предупреждения проникновения запрещенных предметов. Методы исследования: анализ теоретических, нормативно-правовых источников; общенаучные методы (логический, системно-функциональный, обобщение, анализ и синтез), а также частнонаучные методы (статистический, документальный). Результаты: раскрыто назначение деятельности КПП, их виды и требования к оборудованию для пропуска людей, автомобильного и железнодорожного транспорта. Выделены запрещенные предметы, пользующиеся спросом у осужденных, и каналы их доставления. Рассмотрены проблемы действующих КПП через призму их проходимости. Обоснована важность технического и организационного совершенствования КПП для повышения эффективности правопорядка в учреждениях УИС. Выводы: проблема проникновения в учреждения УИС запрещенных предметов и веществ связана с деятельностью КПП. Требуется постоянное использование передовых технических средств, способствующих эффективной деятельности учреждений УИС и оптимизации работы досмотровых групп на КПП. Представляется необходимым обеспечить финансирование на приобретение соответствующих средств контроля и надзора на КПП, а также оптимизировать порядок предупреждения правонарушений в учреждениях УИС. In the conditions of achieving high indicators of the penal system, the Institute of the Federal penitentiary service plays a special role in achieving and strengthening the rule of law in society. It is important to ensure the detection and prevention of crime by establishing reliable protection and supervision of convicts serving their sentences on the territory of penal institutions. In this regard, a special role is assigned to the functioning of checkpoints that control the passage of people and vehicles to the site. It is the checkpoint that is identified as the most vulnerable place in terms of penetration of prohibited items and substances. The above explains the relevance of the research related to the study of methods and means that can reduce the number of prohibited items delivered to the territory of penal institutions due to the effective work of inspection teams. The purpose of the study: to study the specifics of the work of inspection groups at checkpoints in penal institutions and ways to improve their effectiveness to prevent the penetration of prohibited items. Research methods: analysis of theoretical, regulatory and legal sources; General scientific methods (logical, system-functional, generalization, analysis and synthesis), as well as private scientific methods (statistical, documentary). Results: the purpose of checkpoints, their types and requirements for equipment for passing people, road and rail transport are revealed. Prohibited items that are in demand among convicts and their delivery channels are highlighted. The problems of existing checkpoints are considered through the prism of their patency. The importance of technical and organizational improvement of the checkpoint for improving the effectiveness of law and order in the institutions of the penitentiary system is justified. Conclusions: the problem of penetration of prohibited items and substances into penal institutions is related to the activities of the checkpoint. It is necessary to constantly use advanced technical tools that contribute to the effective operation of penal institutions and optimize the work of inspection teams at checkpoints. It is necessary to provide funding for the purchase of appropriate controls and supervision at the checkpoint, as well as to optimize the procedure for preventing offenses in the institutions of the penitentiary system.


Author(s):  
Maria Cahill

Abstract Recent technological advances have made clear that law needs to take a stance in relation to freedom of thought. Although there is no formal recognition of freedom of thought in the text of the 1937 Constitution of Ireland, I will argue that such a right does exist in Irish law on the basis of both implicit and initial explicit recognition for freedom of thought in the decisions of the superior courts. Part 2 lays out the ways in which freedom of thought is implicitly recognised in the Irish legal system, both through the protection of other constitutional rights and through the place of international law in the Irish legal order. Part 3 takes the analysis a step further, using the doctrine of unenumerated rights (a peculiarity of Irish constitutional law) to spotlight an overlooked Supreme Court judgment in which the right to freedom of thought has been judicially recognised in the absence of a textual mandate in the Constitution. It then proceeds to shore up arguments in favour of such recognition, arguing that protecting freedom of thought is a good thing, because it honours human freedom and human dignity.


2020 ◽  
Author(s):  
Dandara Cordeiro de Oliveira Fernandes

This dissertation intends to analyze the performance of the Judiciary in the implementation of public habitation policies, as an effective mechanism and also check them. It will be based on the process of judicialization of public policies as a reflection of this ineffectiveness, evaluating the legal order of the country with a focus on the Constitutional Law on Habitation, which must be protected by the State. Therefore, it will work on the idea of the Right to Habitation built as a Social Law and will start from the problem of the effectiveness of Social Rights, which consequently leads to the inoperability on public habitation policies. And the Judiciary contribution to remedy state omissions and failures in the face of the realization of Social Rights and the Right to Habitation. From the problematic of the effectiveness of public habitation policies and consequently the Right to Habitation, by constructing the conception of justice based on the material equality of John Rawls, will be raised the hypothesis of action of the Judiciary Power and the reflexes of this activity in the concretization of the policies, in view of the growing process of judicialization.


Author(s):  
Doris König

AbstractThis chapter illustrates the two ways in which national constitutional courts can deal with a conflict between international or European law on the one hand and national constitutional law on the other hand. The dualist approach of not complying with international or European law comes at the risk of undermining respect for an external legal order and in the author’s view should thus be used in exceptional cases only. The chapter argues that the test of equivalent protection is more constructive but requires a close relationship between the legal orders involved. Therefore, this option is difficult to apply in cases which are about conflicts with international and not with European law. In Sentenza 238/2014, the Italian Constitutional Court chose a dualist approach. Although the legal path has not been exhausted yet (Germany could bring another case before the International Court of Justice), the author advocates negotiations with the aim of achieving a political solution which takes into account the interests of all parties involved.


2021 ◽  
pp. 46-52
Author(s):  
Dmitrii V. Zmievskii

The article considers the right of legislative initiative of the Constitutional Court of the Russian Federation enshrined in the Constitution of the Russian Federation in the light of amendments made to the Fundamental Law of our state in 2020, as well as subsequent updating of special federal constitutional legislation. It is noted that the problem of practice deficiency in implementing the mentioned power by the Constitutional Court of the Russian Federation is not new for the Russian legal science; in general, it is naturally determined and is due to a number of objective factors. However, the process of updating and developing the constitutional provisions on the supreme judicial control body of Russia and, in particular, creating the system of preliminary judicial constitutional control, bring the problem under consideration to a qualitatively new level. The approach itself in terms of granting the mentioned power to supreme courts in the Russian Federation is characterized as atypical for the countries near and far abroad. At the same time, the current lack of practice in exercising the power in question by the Constitutional Court is due to the special role of the latter in the system of supreme state authorities, in particular, the judiciary. The point of view is expressed that the problem cannot be unambiguously solved at the present stage of the statehood development. The author does not share the increasingly expressed point of view today that the right of legislative initiative should be excluded from the powers of the Constitutional Court of the Russian Federation, since this will lead to a violation of the equality of the constitutional and legal statuses of the two independent supreme judicial authorities. In addition, the shortcomings in the wording of certain constitutional provisions have been identified and possible ways to eliminate them have been proposed.


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