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Chapter 18 - Russia: In Quest for a European Identity
- from PART V - HOSTILE CRITICISM
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- By Aaron Matta, Senior Researcher within the Rule of Law Program at the Hague Institute for Global Justice, Armen Mazmanyan, Director of Apella Institute in Yerevan, Armenia and Visiting Professor at Sanford School of Public Policy, Duke University
- Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
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- Book:
- Criticism of the European Court of Human Rights
- Published by:
- Intersentia
- Published online:
- 13 December 2017
- Print publication:
- 24 June 2016, pp 481-502
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- Chapter
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Summary
CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS
As this chapter is being written, Russia's relations with the Council of Europe hit a new low. In July 2015, Russia's Constitutional Court proclaimed a judgment in which it explicitly referred to the supremacy of the Constitution of the Russian Constitution over the ECHR and reserved itself a right to review ECtHR judgments on the subject of their conformity with the Russian Constitution. Earlier, in January 2015, the Parliamentary Assembly of the Council of Europe (PACE) had decided not to restore the voting rights of the Russian delegation in the Assembly until April of the same year, amid the Ukrainian crisis, and in response Russia had moved to pull out of the PACE for a whole year. This new low point in the relationship between the country and the Council of Europe is in no way unprecedented. Russia's vote at the PACE had been suspended previously for several other reasons, last time in 2014, following the annexation of Crimea. The relationship between the two has been turbulent well since Russia's accession to the European Convention of Human Rights back in 1996, with series of further failures in Russia's human rights record only deepening the face-off : the war in Chechnya, death penalty, relations with Georgia, deteriorating human rights record domestically and ultimately the offensive on Ukraine.
The explanations to the country's uneasy relationship with the Council, as well as its Human Rights Court can be drawn from different perspectives. The distinct legal culture, inherited from the ruins of the Soviet Union, a country famous for its skepticism towards some key legal concepts and principles distinguishing the modern democratic society, may shed much light on this. Obviously, Russia's smooth integration into the European legal space is strongly undermined by the prevalence of a legal culture which carries the heavy influence of both continental legal positivism and a heritage of communist legalism branded as “vulgar Marxian positivism”. Russia's legal development is also suffering in the hands of its corrupt political leaders who often attempt to exploit the prevalent patterns of formalism in law to reach their political goals. Russia's legal integration is finally weakened by the institutional design of the judiciary where courts often appear incompetent to apply constitutional principles and the case law of the ECHR due to jurisdictional limitations facing general courts.
Failing constitutionalism: From political legalism to defective empowerment
- ARMEN MAZMANYAN
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- Journal:
- Global Constitutionalism / Volume 1 / Issue 2 / July 2012
- Published online by Cambridge University Press:
- 06 June 2012, pp. 313-333
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- Article
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The recent wave of popular uprisings in the Middle East and Northern Africa has sparked a renewed attention to democratization across the world. One of many intriguing questions in this context is whether this trend will be spread globally and will flash another wave of democratization among some regions and countries where democratic euphoria has faded away. Another intriguing question is whether this new wave, in the Middle East or elsewhere, will take a constitutional path or will evolve through undemocratic and unconstitutional channels. In this light, it looks perfectly timely to discuss the lessons from and the modern prospects of building constitutional democracies in post-Soviet countries.
This article offers perspectives on challenges facing post-Soviet higher courts in the effort to promote constitutional democracy in their countries. While it argues that there are many such challenges and that their roots are mostly deep in the political culture, selected and discussed are some specific instances which starkly expose the patterns of constitutional perversion and the most relevant limitations facing post-Soviet courts in our days. The solutions to these are seen in the incremental process of institutional learning hence the article suggests some designer strategies which may help moving along this process.
The first section outlines what appears to be a peculiar vision of constitutionalism as embedded in respective societies and assesses this entrenched concept against accepted accounts of Western constitutionalism. The second section discusses some specific challenges to development of constitutionalism in post-Soviet countries, concentrating on inherited mindset and legal culture, as well as corrupt political technologies and flaws in the design of constitutional courts. The third section discusses two illustrative cases before higher tribunals to demonstrate what courts face in the courtroom when confronting the described challenges.