Contents # 3/2021

■ CONSTITUTIONAL AND MUNICIPAL LAW

Institute of Constitutional Control in Uzbekistan: Formation, Current State and Development Prospects  Pdf 16

A. B. Gafurov

Askar B. Gafurov
The Constitutional Court of the Republic of Uzbekistan, Tashkent, Uzbekistan, askargafurov@mail.ru

Abstract. The work examines the formation and development of the institution of constitutional control in the Republic of Uzbekistan. The relevance of the study is due to the fact that it allows to comprehensively analyze the current state of constitutional control, to comprehend the existing problems and to develop proposals for improving the mechanisms of administration of constitutional justice. There is a need to determine promising directions for the development of constitutional control in the context of the forthcoming expansion of the competence of the Constitutional Court and the introduction of the institution of constitutional complaint.
The main purpose of the study is to analyze the peculiarities of the formation and development of the institution of constitutional control in Uzbekistan, develop proposals aimed at improving the legal mechanisms for administering constitutional justice. The objectives of the study are: to identify the historical prerequisites for the formation of constitutional control in Uzbekistan; to disclose the evolution of the institution of constitutional control and determine the features of the institution of constitutional control in Uzbekistan; to develop specific proposals for improving constitutional control and increase the efficiency of its functioning. Scientific, legal and retrospective analysis of the formation of the institution of constitutional control allows us to highlight the main stages of formation and development, to trace the patterns of development, to predict the prospects for improving constitutional control in Uzbekistan. The article analyzes the problems that hinder the effectiveness of constitutional control. It also concludes that at the present stage legislation is being improved aimed at strengthening the role of the Constitutional Court in protecting the constitutional rights and freedoms of citizens, while ensuring the supremacy of the Constitution and laws in the country.
The current state of constitutional control in Uzbekistan is characterized as static. The legal mechanisms for the implementation of constitutional justice need to be improved. Indirect access of citizens to constitutional justice is not an effective mechanism for ensuring the protection of citizens’ constitutional rights. In connection with the upcoming introduction of the institution of constitutional complaint, it is necessary to: improve the procedural aspects, which administers constitutional justice; and develop criteria for the admissibility of a constitutional complaint.

Keywords: institution of constitutional control, supremacy of the Constitution and the law, constitutional legality, constitutional complaint, Constitutional Court of the Republic of Uzbekistan

For citation. Gafurov A. B. Institute of Constitutional Control in Uzbekistan: Formation, Current State and Development Prospects. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 3, pp. 5—18. (In Russ.) DOI: 10.12737/jflcl.2021.026

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Interaction of European Union Law and Constitutional Law of the Member States: Pluralistic Approaches  Pdf 16

I. I. Lebedeva

Iana I. Lebedeva
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, lebedeva. ioanna@yandex.ru, https://orcid.org/0000-0002-2982-5642

Abstract. The modern development of European Union law demonstrates that the supranational legal order is in conflict with the constitutional systems of its member states. Numerous cases considered by the Court of Justice and national courts clearly demonstrate these tendencies. In the plane of positive law, there are no attempts to harmonize normative systems, while each of it claims to possess constitutional status. The higher courts of the latter make decisions on the nature of such interaction and only occasionally engage in the process of an informal exchange of legal positions. At the same time, the opposite tendency is noted in the foreign theory of law. Since the beginning of the 2000s the most influential theoretical trend is legal pluralism, which over time is gaining more and more supporters. The concept of pluralism and constitutional pluralism are identical, since within the framework of this direction the interaction of only those subjects that have a constitutional status is considered. Despite the significant diversity of the argumentation put forward by the pluralists, they are united by a positive attitude towards legal conflicts, which resolution makes it possible to delimit the scope of legal systems and to better outline the boundaries of constitutional identities. In addition, what is common to pluralists is the idea that a dialogue between legal systems and their judicial bodies can provide the desired compatibility without resorting to the idea of subordination and supremacy. The article consistently examines the theories of N. McCormick’s radical constitutional pluralism, N. Walker’s epistemological pluralism, J. Weiler’s material (substantive) constitutional pluralism, M. Maduro’s counterpunctual law, as well as M. Kumm’s institutional pluralism, supplemented by V. Comella’s ideological views. Despite the absence of a unified synthetic theory of legal pluralism, each of the authors fills the pluralistic dimension with new content, either it is procedural requirements (N. McCormick, N. Walker), material criteria (J. Weiler, M. Maduro) or action within the framework of a dialogue of legal systems by actors (M. Kumm). The above indicates that the idea of a paramount structure of law in Europe is no longer the dominant view of legal science and requires rethinking in order to preserve the European Union as a political entity.

Keywords: European Union, supranational law, European law, constitutional law, constitutional pluralism, constitutional identity, transnational humanism, dialogue of courts

For citation. Lebedeva I. I. Interaction of European Union Law and Constitutional Law of the Member States: Pluralistic Approaches. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 3, pp. 19—35. (In Russ.) DOI: 10.12737/jflcl.2021.027

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■ COMPARATIVE RESEARCHES OF CRIMINAL LAW, CRIMINOLOGY AND CRIMINAL EXECUTIVE LAW

Legal Consequences of Conviction (Comparative Research)  Pdf 16

N. A. Golovanova, O. I. Semykina

Natalia A. Golovanova1, Olga I. Semykina2
1, 2Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
1golovanovanata@yandex.ru, https://orcid.org/0000-0002-6991-3604
2semykola@yandex.ru, https://orcid.org/0000-0002-2557-8648

Abstract. In a comparative legal vein, the article examines trends in the formation of criminal law and socio-legal consequences of convictions in the jurisdictions of certain foreign states. The subject of the study includes an analysis of the UK, Canadian and US legislation concerning the negative consequences of convictions for various types of crimes, including acts of corruption and crimes against the sexual inviolability of minors. Taking into account the proximity of legal approaches to the construction of the institution of criminal record, its criminal and socio-legal consequences, the article reveals some legal restrictions for convicts, which are interesting for the legislation and the law of the Russian Federation, introduced in the Criminal Code and other regulatory legal acts of the CIS member states.
On the eve of the 100th Anniversary of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, the authors of the work underlines the high relevance of the issue of abolishing the institution of criminal record, which is raised into a heated scientific discussion at the Institute for the first time.

Keywords: conviction, criminal consequences, social consequences, recidivism, criminal records, rehabilitation, offender register, employment discrimination, social death, human rights, limitation of rights

For citation. Golovanova N. A., Semykina O. I. Legal Consequences of Conviction (Comparative Research). Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 3, pp. 36—49. (In Russ.) DOI: 10.12737/jflcl.2021.028

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Criminal Liability for Incitement to Suicide or Attempted Suicide under the Laws of Foreign States  Pdf 16

V. B. Khatuev

Vakha B. Khatuev
Chechen State University, Grozny, Russia, dogma1982dogma@mail.ru

Abstract. Incitement to suicide or attempted suicide is criminalized by the Russian criminal legislation and legislation of other states. The search for the most perfect model of legislative regulation of responsibility for incitement to suicide necessitates a comparative analysis of the corresponding criminal law norms of foreign legislation. To this end, attention is focused on the experience of such criminalization in the legislation of the former republics of the USSR and other foreign states included those in different legal systems. Thus, the work provides a detailed analysis of their normative provisions, which are designed to counteract the discussed very dangerous act.
The world has accumulated significant experience in the criminal law regulation of liability for this criminal act. The identification of this experience for improving domestic experience and the use of law enforcement is of undoubted importance. The author finds the decision in some foreign countries directly in the law or in the order of judicial interpretation of the criminal law by the highest judicial interpretations concerning the issue of the subjective side of incitement to suicide. Additionally, it is discussed in the Russian legal literature, deserving attention.

Keywords: suicide, incitement to suicide, incitement to commit suicide, criminal legislation, comparative analysis, driving to transformation

For citation. Khatuev V. B. Criminal Liability for Incitement to Suicide or Attempted Suicide under the Laws of Foreign States. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 3, pp. 50—69. (In Russ.) DOI: 10.12737/jflcl.2021.029

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■ LAND, NATURAL RESOURCES, ECOLOGICAL, AGRARIAN LAW OF RUSSIA AND FOREIGN COUNTRIES

Comparative Analysis of the Provisions on the Rights and Obligations of Citizens in the Field of Environmental Management According to the Constitutions of Russia and Foreign Countries  Pdf 16

S. A. Bogolyubov

Sergey A. Bogolyubov
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, bogolyubovsa@mail.ru, https://orcid.org/0000-0002-9003-8621

Abstract. The basis for the use of land, mineral resources, water, flora and fauna is laid down in the constitutions, which provide for the rights and obligations of citizens in the area called environmental rights. The effectiveness of their implementation depends on the state’s organization of compliance with obligations and rights, experience in the use of social norms, and traditions of environmental management.
Most of the constitutions, as well as the preamble to the Constitution of the Russian Federation, proceed from the responsibility of the peoples to the present and future generations. The connection of the natural environment with health of people makes it necessary to protect, restore and evaluate its indicators from the view point of human well-being. For the realization of the constitutional status of citizens, a combination of ecological and cultural components, the protection of natural and cultural environments and the reduction of environmental and economic conflicts are promising.
The economic basis of the status of citizens in the field of nature management is the right of ownership of natural objects and its accompanying responsibilities, which importance increases in the conditions of market relations. The constitutions show the desire to make nature management public, to strengthen the protection of the constitutional rights of citizens to agricultural land and other valuable natural lands. To ensure the environmental rights and obligations of citizens, environmental management is given social functions (also through its planning), the transfer of individual natural resources to the exclusive ownership of the state. This should not, in accordance with the law, detract from the rights of private property of citizens to natural objects.
The constitutional responsibility of society for the implementation of the rights and obligations of citizens in the field of environmental management is set out depending on the economic and political levels of development of states. The modernization of the rights and duties of citizens leads to the redistribution of state functions by branches and levels of government, and the consolidation of the opportunities of public associations of citizens to influence the fate of natural resources. The provisions of the constitutions of federal states on trust, and those on ensuring environmental and food security are important. The status of citizens in the field of environmental management implies both the use and addition of the democratic and humanitarian foundations of the state, its responsibility for the implementation of constitutional environmental obligations and rights.

Keywords: nature management and environmental protection, constitutional legislation, environmental rights and obligations of citizens, citizens’ ownership of natural objects

For citation. Bogolyubov S. A. Comparative Analysis of the Provisions on the Rights and Obligations of Citizens in the Field of Environmental Management According to the Constitutions of Russia and Foreign Countries. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 3, pp. 70—83. (In Russ.) DOI: 10.12737/jflcl.2021.030

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Theoretical and Methodological Problems of Technical Regulation in the Eurasian Space as a Component of the Legal Provision of Transport Environmental Safety  Pdf 16

О. A. Khоtko

Оlga A. Khоtko
Belarusian State University, Minsk, Вelarus, o.a.khatsko@gmail.com, https://orcid.org/0000-0001-7259-8089

Abstract. The article examines the issue of the effectiveness of technical regulation within the legal provision of transport environmental safety, explores the essence of technical regulations in the field of transport in the light of environmental safety. Transport environmental safety is a new subject of consideration in environmental and legal science and is defined by us as a particularly relevant scientific direction, representing the importance in the current conditions of technological progress and the urgent need for its study, taking into account the deep “revision” of technical regulation related to transport, affecting the state of environmental protection.
The purpose of the study is to establish modernized directions and ways to improve the development of technical regulations related to transport activities in the context of legal support for environmental safety. The objectives of the study are to study the content of technical regulations concerning various modes of transport, to analyze the doctrinal interpretation of technical regulations and theoretical provisions in the field of environmental protection and environmental safety, to predict the prospects for further development of legal support in this area.
Research methods: analysis, systematization, comparison, forecasting and other methods of cognition.
Conclusion: there is a lack of legal support for the transport environmental safety at the level of the adopted technical regulations establishing requirements for transport within the framework of the Eurasian Economic Union. The basic principles of technical regulation in this area of relations are defined in order to reduce the harmful impact of transport on the environment. The current directions of improving technical regulation in this area are proposed in order to protect the environment, implement the rights of citizens to life and health.

Keywords: legal support, technical regulation, technical regulations, environmental safety, environmental protection, transport, legislation, Eurasian Economic Union

For citation. Khotko O. A. Theoretical and Methodological Problems of Technical Regulation in the Eurasian Space as a Component of the Legal Provision of Transport Environmental Safety. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 3, pp. 84—99. (In Russ.) DOI: 10.12737/jflcl.2021.031

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■ CIVIL LAW. ENTREPRENEURIAL LAW. FAMILY LAW. PRIVATE INTERNATIONAL LAW

Judicial Doctrines in Intellectual Property Law in Russia and Abroad  Pdf 16

A. I. Sidorenko

Andrei I. Sidorenko
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, andrew.i.sidorenko@gmail.com, https://orcid.org/0000-0002-5356-3363

Abstract. The main modern legal systems, driven by accepted market mechanisms of interactions of national economies, seek to harmonize and unify legal regulation. These processes are facilitated by legal doctrines that help to determine the content of law using teleological interpretation. This article on the basis of intellectual property case-law of different courts briefly examines theoretical issues of the influence of legal doctrines on judicial practice, which allows us to assert the formation of judicial doctrines and examples of judicial doctrines in intellectual property.
The use of legal doctrines in practice allows realization of their prognostic potential, which exists thanks to imagining by scientists of many hypothetical legal conflicts even before they become the subject of judicial review, or to predict further trends in law enforcement based on various economic and legal concepts. Since these scientific findings are abstract, they induce judicial practice to general conclusions, and their reverse concretization in judicial practice sets the tone for the further development of legal science and legal practice. This is how ensured the mutual enrichment of science and practice. At the same time, this order of dialogue between courts and legal science is more popular in common law countries, although the tendency of expansion of such practices can be considered global.
The sphere of regulation of intellectual property is one of the most difficult for establishing a balance between private and public interests. Economic and legal theories often justify opposing approaches to realization of intellectual property. On the one hand, the lack of effective protection of intellectual property will allow not to pay for their use. On the other hand, excessively rigid mechanisms of legal protection of intellectual property will inhibit social progress. In this regard, it is important that objects of intellectual property become accessible to a wide circle of users in a way that preserves the stimulation of financial and nonmaterial activities including compensation of intangible costs.

Keywords: intellectual property, judicial doctrines, exhaustion, fair use, transformative use

For citation. Sidorenko A. I. Judicial Doctrines in Intellectual Property Law in Russia and Abroad. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 3, pp. 100—115. (In Russ.) DOI: 10.12737/jflcl.2021.032

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Climate Litigation: Foreign Experience and Prospects in Russia  Pdf 16

D. A. Gershinkova

Dinara A. Gershinkova
Government of the Sakhalin Region, Yuzhno-Sakhalinsk, Russia, gdinara@list.ru

Abstract. The article is devoted to the analysis of foreign judicial practice on “climate” claims, the number of which as of 2019 was 1,300. “Climate” trials were initiated in 28 countries. The emerging judicial practice is of interest for studying the prospects for development in Russia, as well as for assessing the business risks of Russian companies operating abroad and accounting for them accordingly.
In this article, based on the publications of Russian and foreign authors, reports of various organizations, including the UN system, the applied grounds for filing “climate” claims, the parties to the process, specific legal proceedings, separately — with the participation of oil and gas companies. Obligations in the field of human rights or consumer rights accepted at the national or international level serve as grounds for those suits. The plaintiffs are usually non-governmental organizations and citizens, while the defendants are national governments and large companies. The most popular claim is an injunction restricting activities that cause greenhouse gas emissions. The objective difficulty at the current stage is to establishing a cause-and-effect relationship between actions (greenhouse gas emissions) and the resulting negative consequences (damage). At the same time, the plaintiffs act creatively searching for legal responsibility, using conclusions and recommendations of the scientific climate community.

Keywords: climate lawsuits, human rights, public trust doctrine, climate change, oil and gas companies

For citation. Gershinkova D. A. Climate Litigation: Foreign Experience and Prospects in Russia. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 3, pp. 116—131. (In Russ.) DOI: 10.12737/jflcl.2021.033

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■ INTERNATIONAL AND INTEGRATION LAW. EUROPEAN LAW

Commentary on the Judgment of the ECtHR Grand Chamber in the Case “Gudmundur Andri Astradsson v. Island”  Pdf 16

D. I. Dedov, Kh. I. Gadjiev

Dmitry I. Dedov1, Khanlar I. Gadjiev2
1European Court of Human Rights, Strasbourg, France, Dmitry.Dedov@echr.coe.int
2Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, khanlar9999@gmail.com, https://orcid.org/0000-0001-6002-6075

Abstract. In the Grand Chamber judgment under review the applicant who had appealed his conviction before the newly established Court of Appeal of Iceland, alleged that the examination of his case had not met the requirements enshrined in Article 6 of the European Convention on Human Rights in respect of the right to a “tribunal established by law” on account of irregularities in the appointment of the judges. These violations relate to the proposal of the Minister of Justice which led to the exclusion of four candidates recognized by the Evaluation Committee as the most qualified, and their replacement by four alternative candidates. One of them was the judge who considered the applicant’s appeal. Thus, the Grand Chamber of the European Court had to solve a difficult problem: is it possible to consider the court which includes a judge appointed in violation of the relevant legislation, as a “tribunal established by law”. Many researchers have found the judgment innovative, as the Court’s explanation expanded the scope of the right to a “tribunal established by law” rightly linking this approach to one of the main aspects of the rule of law. At the same time, this judgment is considered as one of the most significant among other judgments delivered last year in the field of constitutional law. The Court presumes that the violation has a negative impact on the confidence that the judiciary should instill in people in a democratic society. In a particular situation where the executive branch has tried to exert undue influence over the judiciary, the Court has acted as a reliable defender of the separation of powers doctrine.

Keywords: independence and impartiality of judges, rule of law, tribunal established by law, legal certainty, judiciary, fair trial

For citation. Dedov D. I., Gadjiev Kh. I. Commentary on the Judgment of the ECtHR Grand Chamber in the Case “Gudmundur Andri Astradsson v. Island”. Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 3, pp. 132—141. (In Russ.) DOI: 10.12737/jflcl.2021.034

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■ MATERIALS OF THE VENICE COMMISSION OF THE COUNCIL OF EUROPE

Review of the 126th Plenary Session of the European Commission for Democracy through Law (Venice Commission) (19—20 March 2020)  Pdf 16

A. A. Kashirkina

Anna A. Kashirkina
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, venkom@izak.ru, https://orcid.org/0000-0002-4269-8262

Abstract. On March 19—20, 2021, the 126th plenary session of the European Commission for Democracy through Law (Venice Commission) was held online. During the session of the Venice Commission, its members and experts discussed and adopted opinions on the legislation of Spain, Belarus, Kazakhstan, Ukraine, Kyrgyzstan, Bosnia and Herzegovina, Georgia, Russia, Montenegro, Moldova, and Armenia.
The subject matter of the requests under consideration, on which the VC opinions were prepared, was related to the implementation of constitutional reforms, electoral legislation, the legal regulation of the activities of political parties, the reform of the prosecutor’s office, the protection of human rights, the functioning of constitutional control bodies in states and other issues. In addition to the conclusions on specific states, the Venice Commission adopted a number of important documents of a comprehensive nature, namely, the PACE Recommendations on the Rights and Obligations of Non-Governmental Organizations that Assist Refugees and Migrants in Europe, as well as a Compilation of the conclusions and reports of the Venice Commission on legislative procedures and the quality of laws. Important trends in the opinions were the assessment of constitutional reforms and related processes, including the improvement of electoral legislation, the legal regulation of the activities of constitutional control bodies, the functioning of national systems for the protection of human rights, that is, acute problems for the state, on which the Venice Commission made noteworthy conclusions, made proposals and recommendations.

Keywords: European Commission for Democracy through Law (Venice Commission), legislation, constitution, elections, political parties, human rights

For citation. Kashirkina A. A. Review of the 126th Plenary Session of the European Commission for Democracy through Law (Venice Commission) (19—20 March 2020). Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 3, pp. 142—150. (In Russ.) DOI: 10.12737/jflcl.2021.035

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■ REVIEWS

The Truth of Philosophy and the Idea of Law: The Problem of Unity (Review of the Monograph “The Logos of Law: Parmenides — Hegel — Dostoevsky. On the Question of Speculative and Logical Foundations of the Metaphysics of law” by S. I. Zakhartsev, D. V. Maslennikov, V. P. Salnikov. Moscow: Yurlitinform, 2019. 376 p.)  Pdf 16

V. V. Lazarev, A. G. Khabibulin

Valeriy V. Lazarev1, Alik G. Khabibulin2
1Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, yalazer@ rambler.ru, https://orcid.org/0000-0003-0910-0609
2Lomonosov Moscow State University, Moscow, Russia, 21alik@mail.ru

For citation. Lazarev V. V., Khabibulin A. G. The Truth of Philosophy and the Idea of Law: The Problem of Unity (Review of the Monograph “The Logos of Law: Parmenides — Hegel — Dostoevsky. On the Question of Speculative and Logical Foundations of the Metaphysics of law” by S. I. Zakhartsev, D. V. Maslennikov, V. P. Salnikov. Moscow: Yurlitinform, 2019. 376 p.). Journal of Foreign Legislation and Comparative Law, 2021, vol. 17, no. 3, pp. 151—157. (In Russ.) DOI: 10.12737/jflcl.2021.036

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■ MONITORING OF THE FOREIGN COUNTRIES LEGISLATION   Pdf 16

■ NEW BOOKS  Pdf 16

Publications of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

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