Law

Manifestation of Resistance in Constitutional Law (the Case Study of Decisions of the Constitutional Court of the Russian Federation and the European Court of Human Rights)

Introduction. The article is devoted to the analysis of conflicts between the interpretation of decisions of the Constitutional Court of the Russian Federation and the European Court of Human Rights in the context of a particular problem and how the resistance of national legislation to acts of an international character is manifested. Theoretical analysis. The article deals with decisions concerning the promotion of information about homosexual preferences to minors, which, in the opinion of the Constitutional Court, may harm their development. The European Court considers that this restriction is a kind of violation of the rights and freedoms of sexual minorities. Also, a resolution was adopted, according to which the provisions of the Constitution of the Russian Federation are priority in relation to acts of an international character. In this regard, the Constitutional Court in its response decision declared it impossible to implement the decision of the European Court of Human Rights to award compensation by the Russian Federation to the YUKOS company. Conclutions. The following conclusions are presented. Despite the opinion of the European Court of Human Rights, the Constitutional Court of the Russian Federation, in its decisions, seeks to achieve a compromise between the interests of the majority groups of the country’s population and private individual preferences, as well as a dialogue with the international court of justice on the principle of equal partnership. These components are the basis for the stability of our legislation and our values, since, on the one hand, it does not allow harmful acts of a normative nature to penetrate and take hold, and, on the other hand, it preserves the democratic essence of Russian law. To implement the above in real life, we recommend the following: 1) adhere to and seek a balance between different systems of values, 2) justify at the level of theory and introduce into legal practice the doctrine of the constitutional identity of the country, based on the interpretation of the basic values of the Russian Federation.

Public Control in the Sphere of Formation and Functioning of the Executive Power Bodies in the Russian Federation

Introduction. Public control in a democratic state embraces the entire public administration system. One of the most important objects of such control is the activity of executive authorities. Theoretical analysis. The main trajectory of the development of public control in the sphere of executive power is relations associated with the formation and direct activity of executive bodies, as well as their officials. Empirical analysis. It was revealed that in the process of exercising public control in the sphere of the functioning of executive authorities, special forms of control are used, such as the assessment of the regulatory impact and the assessment of the actual impact, suggesting a public-state mechanism for its implementation. Results. Specific features of public control in the area of executive power are the following organizational and legal conditions for its implementation: the mechanism of public control in the sphere of activities of executive authorities based on the concept of “Open government”; implementation of most forms of public control through the use of the electronic communication environment of executive authorities and civil society institutions, including citizens; the use of a special form of control based on a combination of elements of state and public control – public and state control; citizens and public associations that can act as independent subjects of public control.

A Citizen of the Russian Federation is a Subject of Public Control in Russia

Introduction. Public control is an attribute of a developed civil society in the state. In Russia, the Federal law regulating the procedure for public control was adopted in 2014. This law has established a limited range of subjects of public control in Russia, however, current legislation indicates the actual inclusion of other subjects not stipulated in the law in this mechanism. A citizen of the Russian Federation is not directly listed by the Federal law as a subject of public control, however, the law provides for forms of participation of citizens in the process under consideration. Theoretical analysis. Russia today stands on the path of democratic transformation of all state institutions. The implementation of fundamental constitutional provisions regarding the recognition of human and civil rights and freedoms as the highest value is impossible without the functioning of instruments of public control over the activities of public authorities. Developed democracy presupposes the exercise of public control by the entire multi-level system of civil society institutions, with the citizen at the center. Empirical analysis. The analysis of the content of the Federal law “On fundamentals of public control in the Russian Federation” from the point of view of consolidation of constituent entities of social control and forms of its implementation, allows to conclude that, in fact, the law duplicated the forms of social control and subject composition fixed earlier by the Federal law “On Public chamber of the Russian Federation. The current legislation indicates that the central link in the number of subjects of public control are public chambers and public councils operating in Russia and that there are no legal guarantees of citizen participation in the implementation of public control. Results. The current development of the procedure for implementing public control in Russia implies the need for legislative consolidation of direct forms of participation of citizens of the Russian Federation in this mechanism. Direct forms of such participation can be: appeals to state authorities and local self-government bodies in the form of proposals with wide public awareness via Internet resources; participation of citizens in the electoral process as public observers; participation as a member of the public chamber of any territorial level of the organization; participation as members of public associations and other non-governmental non-profit associations; participation as public inspectors and experts on the initiative of Russian citizens.

Imbalance of the Law as a Factor of Counteraction to Its Implementation

Introduction. The article analyzes a particular manifestation of a defective state of legal matter that occurs in the content of acts of the highest legal force, leading to imbalance of the law and imbalance of legal regulation. The main task is to show the consequences of an unbalanced law, which are expressed in situations of counteraction to its implementation, and difficulties in achieving legally significant goals by various subjects of relations. Theoretical analysis. To solve this problem, the author has studied special literature on the issue of balance and imbalance of the legal sphere; on establishing opportunities to use categories that reflect the processes in larger legal entities; determining the grounds and reasons for the imbalance of the law, leading to the emergence of dual and incomprehensible practice of implementing the law, unequal reflection of rights and obligations, as well as the interests of contractors, and so on. A number of laws that are defective in their content, but do not give grounds for initiating procedures for declaring them invalid, unconstitutional, and so on, are subjected to empirical analysis. They only form conditions for opposing their implementation, as well as judicial practice for applying unbalanced laws. Results. The author comes to the conclusion that there are no grounds for inadmissibility of analyzing a normative legal act as unbalanced. The reasons for the imbalance of the law may be significant errors in the formulation of the content, violation of the principle of unity of rights and obligations, inconsistency of the legal status of the addressees of the law, discretion and limits of powers, powers and responsibilities.

The Issue of the Legitimacy of Modern Constitutional Reform

Introduction. The reform of the Basic Law throughout the modern history of Russia has been determined by the political expediency of transforming the presidential power. Until the mid-2000s the constitutional inviolability supported by the authorities was aimed at preserving its political stability. Theoretical analysis. The Russian Federation has entered a new stage of constitutional development, due to the need for constitutionalization – giving a legitimate character to the prevailing presidential power. Any constitutional reform requires a theoretical understanding of its legitimacy, expediency, legality. Empirical analysis. The main factor in modern constitutional reform is the need for constitutionalization of presidential power. Results. The introduction of additional procedures for the adoption of an amendment to the Constitution testifies to the political will of the President of the Russian Federation to enlist the support of active participants in constitutional processes, thereby putting the ongoing constitutional reform in a legitimate and legal form.

Legal Certainty and Democracy: What the “Constitutional Legislator” Allows

Introduction. The article analyzes the legal certainty of the individual as the stability of the content of fundamental rights and freedoms in the context of democratic processes of reforming the current legislation and the Constitution of the Russian Federation. Theoretical analysis. The article notes that the need for stability of fundamental human rights and freedoms is in some contradiction with their dynamic, evolutionary nature. The author questions the possible and necessary limits of majority democratic will with regard to the transformation of the legal system, in general, and constitutional rights and freedoms, in particular. The article addresses some “points of tension” between democracy and the rule of law. Results. On the basis of the article, it is concluded that participation in the processes of democratic transformation of the legal system can be considered as a right to democracy and, in this understanding, it needs the search for a balance with other fundamental rights and freedoms. It is on the basis of this balance that the legal certainty of the individual must be ensured, combining, on the one hand, the stability of the substantive characteristics of fundamental rights and freedoms, and, on the other hand, the expansion of legal claims and the evolution of human rights.

Judiciary and Constitutional Balance

Introduction. The article analyzes the prerequisites for changing the Constitution of the Russian Federation existing in the system of Russian law. For Russia, having a quarter-century legislative experience under conditions of democratic socio-political relations and a market economy, the issue of assessing the potential of the current edition of the Constitution is extremely relevant. Theoretical analysis. An important vectorial principle in the Constitution of the Russian Federation is its focus on the human rights, ensuring rights and freedoms of people. This constitutional principle is implemented by endowing each of the branches of power with an equal amount of authority and responsibility to participate in public administration. Empirical analysis. We proved that the most common cause of imbalance in the system of checks and balances is the changes in society itself. The individual signs of the existing imbalance between the branches of power are considered. Conclutions. We highlighted the lack of objective grounds for reviewing the main provisions of the Constitution of the Russian Federation or the adoption of its new version. At the same time, the possibility of making separate, point-wise amendments to the provisions of the Constitution of the Russian Federation regarding the powers of the branches of state power is considered.

The Principle of Universality and the Reasonableness of Limiting Passive Suffrage

Introduction. The principle of universality is put forward in the first place among the principles of suffrage, and means the provision by the state of the majority of its citizens with the right to participate in the formation of public authorities. However, universality is not absolute and involves certain exceptions in the form of conditions for the realization of the right to be elected and requirements for candidates for deputies and for an elected post. The purpose of this study is to determine whether the principle of universality of passive suffrage is ensured in Russia, and also to analyze the reasonableness and validity of introduced electoral qualifications. Theoretical analysis. Establishing requirements for candidates and the conditions for their exercise of the right to be elected are, in fact, limitations of passive suffrage. The purpose of any restrictions on human and civil rights can only be to prevent the onset of harmful consequences for society and individuals. Empirical analysis. The practice of Russian elections has shown that the legislative conditions for granting the right to be elected can change with enviable regularity, while they do not always meet constitutional provisions and international election standards. This is indicated by the judicial practice cited in the work, analytical materials posted on the website of the Central Election Commission of the Russian Federation and in the media. A special role of the Constitutional Court of the Russian Federation in protecting the electoral rights is noted. It has repeatedly recognized the provisions of the Law on Elections as unconstitutional in case of unjustified discrimination of the electoral rights of Russian citizens. Results. The study showed that electoral qualifications in the Russian Federation are generally generally accepted exemptions from universal suffrage, and comply with the standards of democratic elections. The author concludes that the restrictions on passive suffrage introduced in the last decade are aimed at protecting constitutionally protected values, are reasonable and justified. The proposal to include the latter in the text of the Constitution of the Russian Federation is aimed at ensuring stable democratic development of Russia. At the same time, it is supposed to be more expedient to include election qualifications in article 32 of the Constitution of the Russian Federation.

The Role of the Russian State in Shaping the Information Society Development Strategy

Introduction. Internet technologies at the turn of the XX–XXI centuries radically affected all spheres of public life, led to a revolutionary leap in the development of Russian civilization. Post-industrial society has moved to a qualitatively new state – the information society, which is characterized by an increase in the share of intellectual labor, an increase in the volume of scientific knowledge and information used in production; the transition of economic and social functions of capital to information, which becomes a multifunctional value, becoming a product of production, a strategic resource, an object of communication, etc. Theoretical analysis. Simultaneously with the development of the information society, its spiritual core is being formed – a specific information and communication culture that incorporates the experience, norms and practices, ideologies, and values of network users. The state, as a participant in the Internet space, as a central subject of information exchange, cannot fail to engage in ongoing processes and the formulation of strategic guidelines for the development of the information society. Emperical analysis. The legal basis for the formation and development of the information society was prepared in the Strategy for its development adopted in 2008, as well as in the strategy for the development of the information society in Russia from 2017 to 2030. However, the 2017–2030 Strategy has a significant potential for long-term development, involving the transition from the information society to the knowledge society, in which the primary importance will not be technical equipment (a high level of IT technologies should already be achieved by this time), but the creation of technologies for the transfer, exchange, and use of reliable information between network users – citizens, organizations and government agencies. Results. As a result of the research, the author comes to the conclusion that it is necessary to manage the information society on the basis of strategic planning documents.

Information and Communication Culture as a Condition for the Realization of Some Rights of Citizens (the Case Study of Procedural Legislation)

Introduction. The article is devoted to the analysis of the significance of the level of development of information and communication culture of citizens for the exercise of their rights in the trial. The internetization and digitalization that have taken over the world make us take a fresh look at the need to comprehend the level of formation of the information and communication culture in the law-making process. Theoretical analysis. The dependence of the realization of certain rights of citizens on the level of formation of the information and communication culture of citizens and society as a whole is analyzed. The ambiguity of the assumption of a high level of legal and information and communication culture in the law-making process is considered, which may further become an obstacle to the realization of citizens’ rights. Results. The author notes that the reduction of orality in the ongoing processes of informatization and internetization should not a priori lead to the recognition of a high level of formation of the information and communication culture of citizens, it is necessary to work systematically on this process. It seems illogical to assume the dependence of the successful implementation of certain norms on the existence of a certain level of legal, information and communication culture of a citizen.

Pages