№ 1 (124) / 2019

INTERNATIONAL LAW

Marochkin S. (Tyumen) The European Court of Human Rights and the Constitutional Court of Russia twenty years later: back to the future?

The article provides a generalized assessment of the 20-year period for the inclusion of Russia in the European system of protection of rights, the interaction of the European Court of Human Rights (ECHR) and the Constitutional Court of Russia (CC). The study was conducted on the basis of an extensive array of decisions of the CC, that is necessary to identify the development of its attitude to the positions and decisions of the ECHR. The main forms of their application, the key legal positions of the CC relating to acts of the ECHR are shown. A larger segment of the period under review was marked by a generally consistent and positive attitude of the CC towards their implementation within the framework of the obligations under the Convention. A significant part of the article is devoted to the analysis of the «reversal» that took place in mid-2015 in the interaction of two courts and the fulfilment of Russia’s international obligations. The decision of the CC dated July 14, 2015, and the decisions adopted in its development in 2016 and 2017, in fact, gave a legal form to the change in attitudes towards the ECHR, which is even accompanied by calls for revision or cancellation of part 4 of art. 15 of the Constitution of the Russian Federation. There is a tendency to retreat from integration, international law, and international justice.

Key words: European Court of Human Rights, Constitutional Court of Russia, Constitution of the Russian Federation, Convention for the Protection of Human Rights and Fundamental Freedoms, international obligations of Russia, execution of decisions of the ECHR

Skuratova A., Korol’kova E. (Moscow) Lethal autonomous weapons systems: problems of international legal regulation

The creation of combat robots is not a science fiction, but a modern approach to the development of military industry. Artificial intellect technologies have reached such a level that the use of them can lead to unpredictable consequences. All of this brings forth the issue on banning the further development and application of lethal autonomous weapons systems beyond the limits of meaningful human control. It is a mission of international law to establish what such control means, what its boundaries would be, what kind of responsibility should arise and who will be responsible for wrongful actions of machines, which caused loss of life and other adverse consequences.

Key words: lethal autonomous weapons systems, artificial intelligence, international law regulation, UN, armed conflicts, international humanitarian law

COMPARATIVE JURISPRUDENCE

Nechkin A. (Yekaterinburg) CIS states in the light of the latest constitutional reforms

The author reviews and analyzes constitutional reforms that took place in CIS countries in the recent past. The definition of constitutional reform is given and their classification is proposed. It is concluded that constitutional reforms in a number of CIS countries are rather opportunistic due to the predominance of the subjective need for their conduct over the objective one. The author also gives general recommendations on improving the procedure of constitutional reforms. In particular, he notes that the constitutional reform should receive a much deeper public and, above all, scientific assessment than the reform of the sectoral legislation and should not be replaced by a constitutional-law reform. The author mentions that, in the near future, in a number of CIS countries, there would be constitutional reforms aimed at the reassessment of a place of the head of state in the system of separation of powers and at the shift of the center of gravity in the sphere of executive power from a sole body of state power – the head of state (president) – to a collegial one – the government.

Key words: Commonwealth of Independent States, constitutional reform, constitution, president, head of state

CONSTITUTIONAL LAW AND PROCEDURE

Evloev I. (Magas) Regional constitutional justice: putting one more nail in the coffin…

The system of regional constitutional justice in the Russian Federation, from its very beginning, has been facing up many problems starting with the insufficient legislative regulation of its activities and ending with the abrogation of laws of the Russian Federation subjects related to constitutional (statutory) courts and the abolition of them. The analysis of the situation shows the lack of an established state approach to this issue and the need for a cardinal review of the federal legislator’s attitude to it. First of all, it is necessary to determine, at the legislative level, the fate of regional constitutional justice, because the increase in the effectiveness of constitutional (statutory) courts’ activities directly depends on their full inclusion in the judiciary. There are several ways of improving the activities of the regional constitutional courts: to change the whole system of constitutional justice bodies, to change the principles of their formation within the existing system or to expand significantly the competence of these courts.

Key words: constitutional (statutory) courts, regional constitutional justice, state of the constitutional justice, development of the constitutional justice

Stepkin S. (Moscow) Problems of the abuse of rights in exercise citizens’ right to apply

The article is devoted to citizens’ right to apply to government bodies and local authorities enshrined in the RF Constitution and various international acts. It is noted that, on the one hand, this right is undisputed, but, on the other hand, citizens could exercise it in bad faith, and this entails the abuse of rights and infringement of the rights of others. Such actions dramatically increase the workload of government bodies and local authorities, and also lead to a useless expenditure of budgetary funds. The author analyzes the legislative norms, which give the right to stop corresponding with unfair citizens, and suggests specific mechanisms for countering the abuse of the right to apply. He also defines the concepts of mass and hub-and-spoke applications, which have come into common usage.

Key words: right to apply, termination of correspondence, abuse of a right, applications of citizens, abuse of the right to apply, mass applications, hub-and-spoke mailing

CRIMINAL LAW AND PROCEDURE

Novoselov G., Shchelkonogova E. (Yekaterinburg) The notion of the Special Part of the Russian Federation Criminal Code

The authors differentiate the concepts of criminal law and criminal legislation; emphasize the importance of dividing the Criminal Code into a General and Special parts; assess the relationship of these elements of the criminal legislation. The ratio of the categories «article of a legal act» and «criminal-law norm» is determined.

Key words: Special Part of the Russian Federation Criminal Code, criminal law, criminal legislation, criminal-law norm, article of a legal act

Rusanov G. (Moscow) Means of modernization of criminal legislation in the field of countering the legalization (laundering) of criminal proceeds in Russia

The author emphasizes three aspects of improving the Russian criminal legislation in the field of countering the legalization (laundering) of criminal proceeds: the transfer of criminal-law norms on liability for the legalization (laundering) of criminal proceeds from Ch. 22 of the Criminal Code into another chapters; the legislative consolidation of the relationship between criminal responsibility for the legalization (laundering) of criminal proceeds and predicate and subsequent crimes; the exclusion of criminal responsibility for the legalization (laundering) of money or other property acquired by a person as a result of the commission of a crime (Art. 174.1 of the RF Criminal Code).

Key words: money laundering, criminal legislation, predicate and subsequent crimes

Khorosheva A. (Barnaul) Forensic activities of participants in the trial as a scientific concept

Based on the analysis of the current methodological and theoretical aspects of forensic science, the author concludes that the development of a direction concerning the forensic support of the trial is possible only through the elimination of ideological uncertainty. Therefore, the author refers to the concept «forensic activities of participants in the trial» and recognizes that this term has a complex social nature and its further research allows developing a holistic doctrine about the forensic cognition of a crime in the trial. The latter does not indicate a confrontation between investigative and judicial forensics, but, on the contrary, allows developing effective forensic methods considering the peculiarities of the subjects and the situation, the differences in goal setting, in which the process of proving takes place. In this regard, the methodological and forensic support of proving criminal cases in the trial is one of the traditional and, at the same time, innovative trends in the development of forensic science.

Key words: forensics, forensic methodology, scientific category, proving, trial, adversarial process

CIVIL LAW AND PROCEDURE

Chernus’ N., Tsikhotskii A. (Novosibirsk) The civil-law regime of human biological material

Constitutional goals and values enshrined in the RF Constitution are aimed at ensuring guarantees in the implementation of somatic and reproductive rights (as ensuring biosocial reproduction). However, the Russian sectoral legislation does not introduce a model of legal regulation of the exercise of such rights. The authors assert that it is necessary to provide a differentiated approach to the legal regulation of the use of human biological material, based on the reasons for their rejection (alienation) and the purpose of further use. They emphasize the need to ensure a balance of economic, scientific interests and a compliance with moral and ethical standards in the legal regulation of the use of human biological material. In the authors’ opinion, other issues arising in the process of using human biological material should be resolved by the professional community, according to the development level and capabilities of modern medicine.

Key words: biological material, human body, legal regime of human organs and tissues, somatic and reproductive rights, use of human biological material

Yakovleva S. (Irkutsk) The impact of the European Court’s of Human Rights legal positions on the mechanism of protection of interests of a bona fide purchaser of premises in the Russian Federation

The article is devoted to the problem of ensuring a balance of interests of a public owner of the premise and a bona fide purchaser who purchased this premise from a not authorized person. The ECHR practice in cases concerning the vindication of premises from a bona fide purchaser is analyzed. The author discusses the constraints in protection of the property right of a bona fide purchaser of premises. Special attention is paid to resolutions of the RF Constitutional Court and reviews of practice of the RF Supreme Court on cases concerning the vindication of premises from a bona fide purchaser arising from claims of public governments and local authorities. It is concluded that the ECHR legal positions has had an impact on the Russian law-enforcement practice and legislation related to ensuring a balance of interests of a public owner of the premise and a bona fide purchaser who purchased this premise from a not authorized person.

Key words: privatization of housing, bona fide purchaser, balance of interests, vindication, European Court of Human Rights, property right to premises

Benedskaya O. (Moscow) On the legal nature of an arbitral tribunal award

The article addresses certain theoretical problems connected with the understanding of the legal essence (nature) of an arbitral tribunal award. On the ground of the assumption that the arbitral proceedings institution is based on the constitutional law and should be analyzed from broader, not merely civil-law or methodological, positions, the author reveals essential features of the constitutional understanding of an arbitral tribunal. Accordingly, she expresses an original opinion on an arbitral award whereby it does not fall only into the category of law-enforcement acts. An arbitral award is usually formulated in the sphere of private law on the basis of the reached compromise (arbitration clause or agreement) and most closely relates to the social and business practices in terms of its source base. In light of this it is proposed to proceed from the fact that it combines law-enforcement and law-making aspects, has individual-regulatory and, simultaneously, discursive-precedent nature, is based on a doctrine and develops it, and aims at ensuring the balance of interests of the parties to a disputable legal relation and their further (post-conflict) positive interaction. In the article, there is the author’s definition of an arbitral tribunal award.

Key words: arbitral tribunal, arbitral award, justice, individual regulation, legal doctrine, mediation

ADMINISTRATIVE LAW AND PROCEDURE

Travnikov N. (Kurgan) Problems of consolidating the institution of official secrets in the Russian legal system

The author studies such a specific legal institution as official secrets in the context of restricting the right to access to information. The main problems raised by the legal consolidation of the official secrets institution are revealed. In particular, the author wants to know whether official secrets are admissible within the framework of the transparency concept, whether the sub-legal regulation of official secrets is possible; analyzes various approaches to the definition of official secrets; establishes some contradictions between regulatory-legal acts of various levels related to the official secrets.

Key words: official secret, information protected by law, information of restricted circulation, transparency, access

Knutov A., Chaplinskii A. (Moscow) Raids as a form of state and municipal control

The article presents a comprehensive analysis of the inspections in the form of raids. It is concluded that a raid is one of the form of state control. The definition of raids is given. This form of control hadn’t been regulated by law until 2014, but had been widely used. In 2014 the legislator established an opportunity for inspection authorities to conduct raids, but did not provide for them any procedural requirements. This situation leads to a disjointed law-enforcement practice. In doctrine, there is no complex analysis of raids. The available publications are related only to specific types of raids. Due to the lack of regulation and scientific researches, the authors carry out a system assessment of the introduction of raids in the inspection and supervision activities, and also identify the types of inspection and supervision activities, where raids are most often conducted. Based on the analysis of law-enforcement practice, the authors reveal and describe in detail a number of problems that arise during the conduct of raids. Each problem is illustrated by certain practices.

Key words: state control, municipal control, inspection and supervision activities, form of state control, raid, patrol

LABOUR AND SOCIAL LAW

Shcherbakova O. (Yekaterinburg) The principle of ensuring the employee’s right to protect his dignity during employment

The author considers the concept of dignity, correlates it with the related concepts, and reveals various approaches to its definition. The article analyzes the international legal norms governing the application of the principle of ensuring the employee’s right to protect his dignity during employment. The theoretical and applied problems of its applying are revealed. It is pointed out that, in the Labour Code, there is no independent mechanism for restoring the employee’s violated right to protect his dignity during employment.

Key words: principle of labour law, dignity of an employee, personal non-property law, protective law

ECONOMICS AND LAW

Khasanova L. (Kazan) Mutually agreed solutions in the frames of the WTO dispute settlement system: characteristics, problems, and prospects

This article analyzes the concept of mutually agreed solutions (MAS) in the frames of dispute settlement system of the WTO. MAS is the result of bilateral negotiations and the most preferable end of the dispute at any stage of its examination in the WTO. MAS provides an opportunity for the parties of the dispute to conduct «flexible justice». The author uses empirical data obtained through the interview with representatives of permanent missions of Member States to the WTO in Geneva, and identifies problems connected with the regulation of MAS. She comes to a conclusion that MAS is an essential part of the effective functioning of the WTO dispute settlement system and that number of those solutions would grow in the upcoming years. In this regard, it is important to improve provisions of the Dispute Settlement Understanding (DSU) concerning MAS. In particular, it is suggested to encrypt a clear definition of MAS in DSU, to set the notification period and the requirement of including main points of the deal in this notification, as well as to grant third parties a right to continue the dispute as complainants in case MAS does not cover their interests.

Key words: WTO, Mutually Agreed Solution, dispute settlement mechanism, Dispute Settlement Understanding, negotiations

PAGES OF HISTORY

Kazarin V. (Irkutsk) Five models of juridical education at the second university in Siberia in the period of society and state transformations (1918–1931)

The author notes that the history of juridical education in the Eastern Siberia is not well-studied; considers the beginning of the law faculty at the Irkutsk State University, which is a continuer of domestic classical traditions. The state policy in the field of higher juridical education in 1918 – the beginning of 1930th is revealed. In terms of a political policy and ideological priorities, the author outlines the changes in juridical education structures of the university, university staff, titles of academic disciplines, teaching techniques, and public activities of legal scholars. Many names of professors and legal scholars, who taught at the university in 1920th, are restored. The author conceptualizes the documents from regional state archives, many of which are firstly introduced in a scientific turnout. He traces the scientific and educational relations between the juridical education and science in the Eastern Siberia and the occurrence of the Ural school of law. Problems of the further exploration of this matter are designated.

Key words: university issue, Irkutsk State University, juridical education, teaching staff, curriculums, public activities of scholars, continuation of traditions

LEGAL HERITAGE

V. S. Nersesyants on the relationship between law and legislation (the material is presented by S. Kodan)

LIBRARY

Review of the book: Forensics: a textbook / K. G. Ivanov, etc; ed. by V. N. Karagodin, E. V. Smakhtin. – Tyumen: Tyumen State University Publishing, 2018. – 652 p.

Review of the book: Marochkin S. Yu. The Operation of International Law in the Russian Legal System. A Changing Approach. – Leiden; Boston: Brill Nijhof, 2019. – 324 p.

Review of the book: The legal mechanism of social risk management: a monograph / E. A. Istomina, M. Yu. Fedorova. – Yekaterinburg: Ural Institute of Management, Branch of Ranepa Publishing, 2018. – 240 p.