Constitutional Judicial Review in the Russian Federation

The institution of constitutional judicial review has acquired a new legal foundation for its application: the Constitution of the Russian Federation (RF), adopted on 12 December 1993; the federal constitutional Law on the Constitutional Court of the Russian Federation of 21 June 1994; and other acts. However, the opportunities for full implementation of this new legislation on constitutional judicial review in the Russian Federation are constrained by problems from the past: first of all, by the problem of depoliticization, which has assumed exaggerated proportions as a result of the lack of practical success that marked the first stage of the Constitutional Court's operation in Russia. The resolution of this problem has become a condition for the viability of specialized constitutional judicial review in the RF. The difficulty of understanding and mastering this problem is further aggravated by the ambiguous nature of the institution of constitutional judicial review, not only in the Russian model but also in the classical model of its organization. For it is indisputable that constitutional judicial review is a component of the mechanism of judicial authority, regardless of where it is situated in the constitutional structure of power. However, constitutional judicial review cannot be wholly equated with traditional judicial functions since it is at the same time also a political activity undertaken through a jurisdictional form.     

Chechnya's Right of Secession under Russian Constitutional Law

This article was written in a period of time when the escalationof the armed conflict in Northern Caucasus and particularlyin Chechnya reached the zenith of violence and unpardonablehuman slaughter.¹ Although contemporary international law doesnot accept the separatist movement's claims to create its ownstatehood, we have to look at the constitutional proceduresfor the modifications of the Fundamental Law of the RussianFederation: At the same time, the political situation afterthe dissolution of the former Soviet Union, the strong presidentialpowers in the constitutional hierarchy of executive organs,and the evident tensions between them and the Russian constitutionaltraditions have to be taken into account. The ambiguous and complicated character of the Chechen conflictis due to the fact that the Russian Federation has tried tokeep this conflict from the attention of the international communityby claiming that the Russian-Chechen conflict is an entirelyinternal matter. It is doubtful in this case if the Russianleadership, who have continued their tough policy, will finda peaceful solution to the almost ten-year armed conflict inthe region. Footnotes ^*LLM, Sofia University "Saint Kliment Ohridski", Faculty ofLaw.     

Problems of Modernizing the Constitutional Order

The author surveys different approaches to constitutional reform and summarizes the results of an expert study conducted by the Institute of Law and Public Policy.     

中国宪法变迁实现机制存在的问题及其完善

中国宪法的变化形态主要是有两种形式:一种是形式主义宪法稳定观意义上的宪法修改,另一种是实质主义宪法稳定观意义上的宪法变迁.宪法变迁作为一种重要的宪法变化形态,主要是以中国共产党的政治实践形式广泛存在的,它对中国改革实践发挥了特定的实效性.也真正因为如此,导致作为主要宪法变迁实现机制的宪法解释处于非典型的地位,这种单一的以政党政治形式主导的“单一化”宪法变迁实现机制,并不能满足“改革宪法”时代人民对宪法的规范性需要,这就为从基本权利体系、宪法修改程序、宪法解释和多元的宪法变迁实现机制等角度完善中国宪法变迁实现机制提供了空间.     

The Islamic Republic of Iran and the ICC

Like many states, Iran has an ambivalent position towards theStatute of the International Criminal Court (‘Statute’),ranging from enthusiastic support to open scepticism. On accountof its experience in the Iraq–Iran war, Iran is interestedin exploring the Court's jurisdiction over aggression and warcrimes; in addition, it sees the possible adoption of provisionson the crime of aggression as a tool against greater powers’domination. Major issues for Iran are, however, some of thepenalties provided for under Iranian criminal law, includingcapital punishment as well as whipping, stoning and the sectioningof limbs as well as the treatment of minorities and gender.Another problem may be the presence of non-Muslim Judges atthe Court, who, it is feared, may not be familiar with and sensitiveto Shari’a principles; in addition, under theologicalprinciples, Muslims may not be judged by non-Muslim Judges.This question paradoxically constitutes an incentive for Iranto consider ratification of the Statute. So far, Iran has signedbut not ratified the Statute. Studies are under way with a viewto presenting the Statute to Parliament for ratification. However,problems of conflict between some provisions of the Statuteand the principles of Shari’a law may arise if the Statuteis ratified.     

India and the ICC

The Statute of the International Criminal Court (ICC Statute)would have been more acceptable to India if it had containedan opt-in provision whereby a state could accept the jurisdictionof the ICC by declaration (possibly for a specified period),and this might be limited to particular conduct or to conductcommitted during a particular period of time. The lack of sucha provision, and the inherent jurisdiction which replaced it,are perceived as representing a violation of the consent ofstates, and thus a threat to sovereignty. India's resistanceto accepting the inherent jurisdiction of the ICC is explained,in part, by anxieties about how investigation, prosecution andcriminal proceedings in the Indian system may be judged by aninternational court. The inclusion of ‘armed conflictnot of an international character’ in defining ‘warcrimes’ in Article 8 ICCSt. constitutes another reasonfor India's concern (that the conflicts that persist in Kashmir,the North-East and as was experienced in Punjab, as well asthe violence of more recent vintage in Gujarat, could be referredto the ICC). Further elements giving rise to India's misgivingsare the fear that the Court might be used with political motives,the power conferred on the Prosecutor to initiate investigationsproprio motu and the role allotted to the Security Council.     

The Verdict of Five out of Six Civil Jurors: Constitutional Problems

A criminal jury of fewer than 6 members and a jury in which 5 out of 6 can find a verdict were held unconstitutional by the U.S. Supreme Court for failing to meet the requirements of due process as mandated by the Fourteenth Amendment. In four states—Michigan is one of them—the 5 out of 6 jury is the standard civil jury. Two questions are raised: first, whether such a jury violates the Michigan state constitution; second, whether such a 5 out of 6 civil jury violates the federal Constitutiton even though the civil jury is not protected by the Fourteenth Amendment.     

National Implementation of ICC Crimes: Impact on National Jurisdictions and the ICC

The national implementation of the International Criminal Court(ICC) Statute has proven to be more difficult than initiallyanticipated. Most States Parties have either not incorporatedthe ICC crimes into their domestic laws, or they have done sousing different forms of wording. This article examines theimplementing legislation of several states to demonstrate howinadequate implementation of the ICC crimes might prevent statesfrom exercising their primary jurisdiction in criminal proceedings.In turn, this might affect the admissibility of a case beforethe ICC. To this end, this article also explores whether flawedimplementation of the ICC crimes amounts to unwillingness orinability of the state to genuinely prosecute. This articleargues that implementation of the Statute is of paramount importanceto the future of the ICC.     

The Constitutional Imagination

The constitutional imagination refers to the way we have been able to conceive the relationship between thought, text and action in the constitution of modern political authority. The lecture seeks to demonstrate how modern constitutional texts come to be invested with a ‘world‐making’ capacity. The argument is advanced first by explaining how social contract thinkers have been able to set the parameters of the constitutional imagination (thought), then by showing that constitutions are agonistic documents and their interpretative method is determined by a dialectic of ideology and utopia (text), and finally by examining the degree to which constitutions have been able to colonise the political domain, thereby converting constitutional aspiration into political reality (action). It concludes by suggesting that although we seem to be entering a constitutional age, this is an ambiguous achievement and whether the power of the constitutional imagination can still be sustained remains an open question.     

宪法学研究范式与宪法学中国化

自托马斯·库恩 196 2年在《科学革命的结构》中提出“范式”概念以后 ,在社会科学的研究中学者们普遍采用了“范式”的概念 ,以寻找研究问题的系统的思考方式与思维框架。库恩认为 ,范式是常规科学所赖以运作和成立的理论基础和实践规范。由于社会现象的复杂性与意识形态性 ,学者们研究某一问题时必然涉及普遍接受和运用的概念、模式、基本的理论框架与研究方法等。宪法学作为社会科学的组成部分 ,在理论研究与实践发展过程中也需要确立共同的“研究范式” ,以保持宪法学理论基础和实践规范的统一。从一般意义上宪法学研究范式涉及本体论、…     

The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty

Abstract:  One of the core constitutional questions for national constitutional courts in the EU in the past decades has been whether to accept the claim made by the Court of Justice that EU law is the supreme law of the land, taking primacy even over conflicting national constitutional provisions. With the inclusion in the recently adopted Constitutional Treaty of a clause explicitly confirming the 'primacy of EU Law' appearances suggest that the EU is about to establish a characteristic of mature, vertically integrated, federal states such as the USA. This article argues that this view is mistaken. It develops a comprehensive jurisprudential framework for addressing constitutional conflicts, 'Constitutionalism Beyond the State' (CBC). CBS detaches the discussion of supremacy and constitutional conflict from a statist framework; provides a jurisprudential account that explains and justifies the highly differentiated, context-sensitive and dynamic set of conflict rules that national courts have in the past adopted; and provides the lacking theoretical basis for the more attractive, but undertheorised sui generis accounts of European constitutional practice that have recently gained ground in the literature. CBS provides a jurisprudentially grounded reconstructive account of why the issue of constitutional conflict is as rich and complicated in Europe as it is and why it is likely to remain so even if the Constitutional Treaty is ratified. The article then goes on to make concrete proposals addressed to national constitutional courts and the Court of Juctise respectively about how, in application of the developed approach, constitutional conflicts ought to be addressed doctrinally. It includes a proposal to read the new 'constitutional identity' clause as authorising Member States as a matter of EU Law to set aside EU Law on constitutional grounds under certain circumstances.     

宪法解释与宪法理解

一 宪法解释之涵义,目前学术界的理解如同对法律解释的理解一样,存在着不同的认识,举其要者,有以下两种代表性的观点： 第一,宪法解释是指一定的国家机关以其享有的宪法解释权对宪法规范的内容、涵义及界限所作的说明。持这种观点者在目前的中国宪法学界占主导地位,是一种通说。代表性的有：“宪法解释,顾名思义,就是有权解释宪法的机构依照一定的解释程序对宪法的含义所作的解释和说明。”①“宪法解释,就是宪法解释机关依照法定权限和程序,根据宪政精神和社会宪政实际需要,对宪法条文的具体含义和适用范围所作的补充说明。”②…     

The Implementation of the ICC Statute in Argentina

Argentina ratified the International Criminal Court (ICC) Statutein November 2000 and adopted an Implementation Law in December2006. The Law introduces into domestic legislation the crimesfalling under ICC jurisdiction by means of renvoi to the Statute.Such procedure avoids the risk of a unilateral definition ofthe crimes. In addition, the Law provides for a range of penaltiesincluding incarceration. Regrettably penalties envisaging restitution,reparation or rehabilitation of the victim are not providedfor in the Law. In terms of cooperation with the ICC, the Lawestablishes mechanisms for an open and efficient relationshipwith the Court in case of arrests and surrender of persons,as well as requests for assistance and preliminary rulings.     

Supervision of the Execution of Decisions of the Constitutional Court of the Russian Federation

In the middle of 2000, efforts to bring the legislation of subjects of the Federation into correspondence with federal norms were greatly intensified in our state. A pressing problem in this connection is the timely implementation of decisions of the Constitutional Court of the Russian Federation (RF).     

The Personal Nature of Individual Criminal Responsibility and the ICC Statute

By affirming criminal responsibility of the individual, theICC Statute recognizes a distinction from the internationalresponsibility of states, which is the basis of modern internationalcriminal law. The importance of the principle is evident notonly in the breadth and analytical nature of the provision dealingwith it, i.e. Article 25 of the Statute, but by its being placedin the part of the Statute devoted to the ‘General Principlesof Criminal Law’. After an introductory considerationof the context of the Article and of its general implications,this article analyses the contents of the regulation and thetype of responsibility outlined in it. The principle that emergescould be called the ‘personal nature’ of internationalcriminal responsibility. Although the general principles setout in the ICC Statute are rather rudimentary in comparisonwith what is to be found in the ‘General Part’ ofmost national criminal laws, the principle of personal responsibilityemerging from the Statute is nevertheless in the best traditionsof criminal law. It serves both as the foundation and as thelimitation of international criminal responsibility, so helpingto ensure that modern international criminal law is not a toolfor oppression but rather an instrument of justice.     

宪政理论范式转换及中国宪法学的回应

宪法学作为社会科学的分支,会随着时代的变化而转换研究范式。宪政理论研究范式大致经历了两种范式转换:近现代古典自由主义模式和当代新宪政主义模式。特定的语境和历史场境赋予了西方宪政概念及其理论自身的内在规定性与特定的理论定位和功能。宪政理论要想成为中国宪法学的理论,必须完成其概念和理论范式的转换。宪法秩序概念及理论涵盖了宪法运作现象的不同形态和不同层面,是对整个宪法运作现象和事实的全局性理论把握和综观性理性反映。它能够克服西方宪政理论的不足,体现中国宪法学对这种不足的回应,是宪政理论和概念范式转换的一种尝试。     

Discreet Signs of the Supreme Idea: On Certain Transcendent Categories in Russian and Soviet Constitutional Law

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - The purpose of this article is to analyse world-view and mythological expressions in Russian and...     

波兰的违宪审查制度与宪法裁判所

波兰的违宪审查制既不同于美国的普通法院审查制 ,又不同于法国的宪法委员会审查制 ,波兰宪法裁判所本质上是一个宪法法院 ,兼具司法审查职能和规范审查职能 ;宪法裁判所的职权比较广泛 ,包括审查法律规范、审查政党活动合法性、解决中央机关间的权限争议 ,以及受理宪法诉讼。审查方式包括事前审查与事后审查 ,具有多样性。