Contents # 5/2022

Andrey V. Skorobogatov
Kazan Innovative University named after V. G. Timiryasov (IEML), Kazan, Russia, av.skorobogatov@mail.ru, https://orcid.org/0000-0001-9139-5367

Abstract. The article deals with the problem of the formation of state sovereignty in Western Europe at the turn of the Middle Ages and the New Age.
The purpose of the article is to explore the role of the Osnabrug and Münster peace treaties — which constitute the Peace of Westphalia 1648 — in the legal registration of sovereign statehood in Western Europe.
Methodologically, the article is based on an integrative methodology that focuses on the study of legal reality in a broad historical and sociocultural context based on the use of a set of methods developed in various humanities. It determines the choice of privatescientific methods of research, which is used as formal-legal, comparative-legal, historical and hermeneutic methods.
Conclusion: The Osnabrug and Münster treaties that constitute the Peace of Westphalia and end the Thirty Years War have not only international, but also domestic significance for many countries of Western Europe. Above all, it was important for the political and legal reorganization of the Sacred Risk of the Empire of the German Nation. An analysis of their texts shows that they reflect the political and legal development of Western Europe at the turn of the Middle Ages and Modern times. The Peace of Westphalia contributes to the transformation of the principles of the organization of European statehood. Due to it, sovereignty is established as the main feature of the state. Despite the limited nature of sovereignty for the German principalities, they get an opportunity to monopolize power within the country and significant independence in the international arena. The defining direction in the development of statehood is the formation and development of absolute monarchies based on a rational approach both to the organization of power and to the formation of a single legal space. The Peace of Westphalia leads to the gradual transformation of the Holy Roman Empire of the German Nation into a union of states which — although they built their relations to a large extent in accordance with the principles of international law — nevertheless remains bound by the common law of the empire and its peacetime obligations.

Keywords: Peace of Westphalia 1648, Treaty of Osnabrug 1648, Treaty of Münster 1648, Western Europe, Holy Roman Empire of the German Nation, state sovereignty

For citation. Skorobogatov A. V. Peace of Westphalia 1648 and the Formation of Sovereign Statehood in Western Europe. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 5, pp. 5—14. (In Russ.) DOI: 10.12737/jflcl.2022.059

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Sergey V. Chirkin¹, Evgenia V. Kosheleva², Iana I. Lebedeva^{3
1, 2, 3}Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
^{1, 2}venkom@izak.ru
³lebedeva.ioanna@yandex.ru, https://orcid.org/0000-0002-2982-5642

Abstract. This article examines the features of the constitutional development of African states in the XXI Century. The authors attempt to analyze the constitutions taking into account regional peculiarities, which belong to the legal families of modernity and historical genesis. The role of customary law — as not only a traditional, but also a modern legal regulator — is separately noted. It points out the distinctive features of constitutions in each region of the continent: North, Central, West, East, South Africa. The article carries out the comparative analysis of constitutions with British and Romanesque influence (Western and Southern Africa) and notes attempts to combine traditional Islamic values and the latest constitutional institutions (North and Central Africa). It is noted that some African constitutions retain a number of ideologies since the time of the “socialist orientation”.
The authors analyze constitutional values, which are increasingly being enshrined in the constitutions of the states of the world, and Africa is not an exception here. Attention is drawn to the tendency to expand the role of constitutional justice in states influenced by French constitutionalism, the diversity of forms of government — that defy traditional classification — and some original features of African constitutions. A number of generalizations are made about universal experience, institutions and adjustments, which can be useful for constitutional legislators in other countries.

Keywords: Africa, regions of Africa, constitution, constitutional values, constitutional traditions, constitutional justice, “quasiEnglish” constitutions, “quasi-French” constitutions, Islamic law, customary law, traditional institutions

For citation. Chirkin S. V., Kosheleva E. V., Lebedeva I. I. African Constitutions: Features of Constitutional Design. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 5, pp. 15—22. DOI: 10.12737/jflcl.2022.060

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Vyacheslav B. Evdokimov¹, Mikhail M. Kakitelashvili^2
1Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, vevdokimov@list.ru
²University of the Prosecutor’s Office of the Russian Federation, Moscow, Russia, mmk2070@gmail.com

Abstract. The interaction of the party and the electoral system is predetermined in the Soviet period. Current trends also indicate the interaction of party and electoral systems in the CIS member states.
This article studies the role of the party system in the modern electoral system based on the example of legislation and law enforcement practice in the CIS countries. The object of the study is the social relations that develop in the process of interaction of party and electoral systems; and the subject is the legal norms themselves, as well as the practice of their application in the CIS countries.
Research methods are: general scientific methods of cognition (dialectical, analysis, synthesis, etc.), historical, comparative legal, formal legal and other methods.
The article concludes that there is a correlation between changes in party legislation and changes in electoral systems. The classification of electoral systems in parliamentary elections in the CIS countries is presented, and the role of political parties in them is also shown. The party system in a certain sense determines the application of a proportional or mixed electoral system.

Keywords: electoral system, political party, parliament, elections, election campaign

For citation. Evdokimov V. B., Кakitelashvili M. M. Interaction of Party and Electoral Systems in the CIS Countries (Current Trends). Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 5, pp. 23—32. DOI: 10.12737/jflcl.2022.061

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Sveta B. Amaniyazova
Karakalpak State University named after Berdakh, Nukus, Uzbekistan, sss83.84@mail.ru, https://orcid.org/0000-0002-6218-8630

Abstract. Since the Republic of Uzbekistan’s first days of independence the incorporation of information and communication technologies in the activities of state bodies and public life has been chosen as one of the main directions of state policy. This, in turn, requires the development and adoption of regulations governing this area, and the introduction of appropriate changes and additions to existing regulations. Therefore, the subject of the study is the analysis of legal documents aimed at regulating the process of digitalization in the Republic of Uzbekistan.
The goals and objectives in this study are to identify unregulated aspects of the digitalization process by analyzing the legal documents selected as the subject of research and developing proposals for improving existing acts.
Research methods are: comparative legal methods and inductive methods used to summarize the presented data.
Results and brief conclusions: the main conclusions of the study are the proposal to codify legal acts that regulate the digitalization sphere. It allows further improvement and effective implementation of this industry. The scientific novelty is due to the fact that — based on the study of the processes of formation of the legal and conceptual foundations of digitalization, as well as the identification of priority areas of legal policy in this area — the stages of the process of digitalization of public administration in the Republic of Uzbekistan are being developed.

Keywords: digitalization, e-government, regulations, strategy, e-government services, openness, public administration, digital transformation, efficiency, information society

For citation. Amaniyazova S. B. Stages of Formation of Legal and Conceptual Foundations of Digitalization Processes in the Republic of Uzbekistan. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 5, pp. 33—40. DOI: 10.12737/jflcl.2022.062

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Artem M. Tsirin
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, artemtsirine@yandex.ru, https://orcid.org/0000-0003-0690-074X

Abstract. The article is devoted to the issues of convergence of law and ethics in combating corruption. It contains an analysis of religious and ethical and philosophical views on the ethical behavior of persons exposed by the authorities. At the same time, a conclusion is made regarding the production of positive rules of ethical behavior of officials from concepts formulated in religious and ethical-philosophical teachings. These teachings influence the legal regulation in different countries, and also contribute to the perception of ethical norms by the legislation of many countries. The author gives examples of such influence in countries with different legal systems (Great Britain, France, Germany, China and the USA).
The article also analyzes the experience of the Russian Federation in reflecting ethical rules of conduct in the legislation on public service, as well as in the Model Code of ethics and official behavior of state and municipal employees.
A distinctive feature of the scientific article is a detailed analysis of the provisions of ethical codes in force in the corporate sector of the Russian economy. At the same time, along with positive practices for regulating ethical rules of conduct, the ethics codes of a number of companies also note shortcomings, including provisions that contradict the norms of current legislation. To eliminate the identified shortcomings, proposals and recommendations are formulated aimed at developing a standard code of ethics and official behavior for employees of organizations.
In addition, it is proposed to systematically conduct educational and other events aimed at promoting anti-corruption ethics in the public and private sectors. To do this, it is proposed to develop and implement the educational program “Anti-corruption ethics” for various categories of persons.

Keywords: law, ethics, convergence, anti-corruption, deontology

For citation. Tsirin A. M. Convergence of Law and Ethics in Combating Corruption: Comparative Investigation. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 5, pp. 41—48. DOI: 10.12737/jflcl.2022.063

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Kirill I. Naletov
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, kirillnaletov@gmail.com, https://orcid.org/0000-0002-7994-7322

Abstract. This article analyzes the complex problem of the quality of professional training of lawyers in the Russian Federation, analyzes various ways to improve the level of professional training of lawyers. The author holds the opinion that it is necessary to improve the quality of training of law students in general humanitarian disciplines, because this will allow them to act professionally in cases of: a) the need to apply the evaluative concept enshrined in the law; b) the existence of the discretion of the judge; c) a gap in legal regulation. The article also examines the problem of the professional monopoly of lawyers on judicial representation and the practical results of the “procedural revolution” that limited the right of persons without legal education to exercise the functions of judicial representatives. The author conducted a comparative legal study of the systems of admission of persons who have received a legal education to professional activity in European countries. First of all, it concerns the functions of judicial representation. The author chose the legal systems of Austria, Spain, Portugal and Andorra as the direct objects of research, since they belong to the most typical Romano-German legal systems and are states of active immigration — a significant number of citizens (or at least tax residents) of the Russian Federation live or own property on their territory. At the same time, the law and order of these four states have been unfairly overlooked by Russian researchers. The interrelation of the legal restriction of access to the professional activity of a lawyer and the monopoly of lawyers on its implementation is noted.

Keywords: law, legal education, legal profession, professional training, legal practice, legal representation, lawyer monopoly, Austria, Spain, Portugal, Andorra

For citation. Naletov K. I. Professional Monopoly of Lawyers in the States of the Romano-German Legal System. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 5, pp. 49—59. (In Russ.) DOI: 10.12737/jflcl.2022.064

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Dmitry I. Dedov¹, Khanlar I. Gadjiev^2
1Dmitry.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. As the basis of any legal system the universal principle of protecting social expectations is implemented, among other things, due to trust in the judicial system capable of ensuring the protection of citizens’ rights and freedoms and the rule of law. Such trust implies an independent judiciary, when the appointment and removal of persons directly administering justice originates from the authority enjoying a high degree of independence, similar to the independence of judges. The judgment of the Grand Chamber of the European Court of Human Rights concerns legislative reform in Poland that resulted in premature termination of a serving Supreme Administrative Court judge’s mandate as member of the National Council of the Judiciary before the expiration of the four-year term of office guaranteed by law. The Court ruled that the premature removal of the judge and the inability to obtain judicial review violated the applicant’s right of access to a court, emphasizing at the same time that the ongoing reforms, which directly affected the applicant’s rights, were simultaneously aimed at weakening judicial independence and exposed it to interference by the executive and legislative powers.

Keywords: independence of judges, access to a court, Council of the Judiciary, individual complaint, judicial reform, rule of law

For citation. Dedov D. I., Gadjiev Kh. I. Commentary on the Judgment of the ECtHR Grand Chamber in the Case “Grzeda v. Poland”. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 5, pp. 60—70. DOI: 10.12737/jflcl.2022.065

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Irina V. Ginzburg
National Research Ogarev Mordovia State University, Saransk, Russia, Irinag88@list.ru, https://orcid.org/0000-0003-4219-8345

Abstract. Ensuring access to justice and the possibility of obtaining compensation for mass harm victims is an important component of the right to judicial protection and, at the same time, a difficult task. At the same time, proceedings to protect the rights and legitimate interests of a group of persons have repeatedly proved their effectiveness in resolving it. Even in those states where the introduction of group p proceedings was clearly restrained due to distrust of this institution, this process was inevitable. The first analogues of group productions were conceived as temporary measures. But after a while it became clear that it is impossible to abandon group proceedings.
The article examines the genesis of forms of collective protection in the EU member states, analyzes recent changes in the regulation of group proceedings at the supranational level.
By means of comparative legal and formal legal research methods, an assessment of the implementation of group proceedings in national legislation is given (on the example of Belgium and Germany).
Taking into account the novelties of the Russian procedural legislation, the features and advantages of the domestic model of group proceedings are revealed. At the same time, the analysis of law enforcement practice, gradually developing in accordance with the adopted amendments, helped to identify problems that need to be eliminated in the process of further reforming proceedings to protect the rights and legitimate interests of a group of persons in the Russian Federation. A comparative analysis of the forms of collective protection in Belgium and Germany allowed us to propose options for further reforming the institution of class actions in the Russian Federation.

Keywords: access to justice, collective interests, the rights and legitimate interests protection of a group of persons, class action, class proceeding

For citation. Ginzburg I. V. Protection of the Rights and Legitimate Interests of a Group of Persons (Comparative Analysis). Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 5, pp. 71—83. (In Russ.) DOI: 10.12737/jflcl.2022.066

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Anatoly I. Kovler¹, Anna A. Kashirkina^{2
1, 2}Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia
¹venkom@izak.ru
²anna-kash@yandex.ru, https://orcid.org/0000-0002-4269-8262

Abstract. The review describes the work of the 130th and 131st plenary sessions of the European Commission for Democracy through Law (Venice Commission) held in March and June 2022.
Within the framework of the 130th plenary session of the Venice Commission, opinions on the legislation of Armenia, Belarus, Chile, Kosovo, Romania, Croatia were discussed and adopted. The topics of the requests, on which the VC opinions were prepared, were related to the implementation of constitutional reforms, the reform of the prosecutor’s office, and the implementation of judicial reforms. As a result of the opinions adopted at the 130th plenary session, the Venice Commission drew noteworthy conclusions, as well as formulated proposals and recommendations regarding specific issues on amending the legislation of individual states. Also, within the framework of the 130th session, the Venice Commission adopted comprehensive documents of a scientific and legal nature that deserve attention: a report on internal procedures for the ratification and denunciation of international treaties; a compilation on legal certainty.
Within the framework of the 131st plenary session of the Venice Commission, a number of opinions were adopted, including the joint opinion of the Venice Commission and the Directorate General for Human Rights and the Rule of Law of the Council of Europe on the Azerbaijani Media Law, the opinion on the amendments made in December 2021 to the Organic Law “On General Courts of Georgia”, joint opinion of the Venice Commission and the ODIHR/OSCE on the draft law on political parties of Mongolia, opinion on the draft law on the independence of the judiciary of Lebanon, opinion on the constitutional and legislative framework regarding the referendum and the announcement of elections by the President of the Republic of Tunisia, opinion on the draft Code of State Property of Tunisia, amicus curiae for the Constitutional Court of Ukraine on the limits of subsequent (a posteriori) review of constitutional amendments by the Constitutional Court, explanatory report to the Code of Good Practice for Holding Referendums. The Venice Commission was also informed about the actions taken by States to take into account the recommendations contained in its previously adopted opinions.

Keywords: Venice Commission, plenary sessions, legislation, constitution, reform, opinion, prosecutor’s office, judicial system, international treaties, ratification, denunciation, legal certainty

For citation. Kovler A. I., Kashirkina A. A. Review of the 130th and 131st Plenary Sessions of the European Commission for Democracy through Law (Venice Commission) (18—19 March 2022, 17—18 June 2022). Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 5, pp. 84—94. DOI: 10.12737/jflcl.2022.067

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Zalina B. Khamchieva
Institute of Legislation and Comparative Law under the Government of the Russian Federation, Moscow, Russia, zalina.kh@gmail.com

Abstract. The author analyzes the category “constitutional development” as a scientific phenomenon and as a process of changing the content of constitutional and legal norms in the legal practice of individual states. This refers to the significance and main elements of this process, the identification of ways to implement it and the permissible limits of constitutional development, including from the point of view of the legal positions of the European Commission for Democracy through Law (Venice Commission).
The purpose of the study is to determine the content of constitutional development and its main mechanisms aimed at ensuring a balance of stability and dynamism of the constitution. Doctrinal sources, constitutional and legal acts, as well as the practice of the Venice Commission are analyzed; methods of comparative jurisprudence are used. The emphasis is placed on determining the permissible limits of constitutional changes established to ensure the stability function of the constitution.
Conclusions: constitutional development is a complex phenomenon, which consists in changing the content of constitutional provisions by formal and informal methods. The specific ways of constitutional development depend on the legal system and the form of the constitution adopted in the respective State. The main formal way of constitutional development for the countries of the continental legal family is the adoption of constitutional amendments. The stability of the Constitution does not imply a ban on editing the constitution, while the corresponding updating of constitutional and legal regulation taking into account changing legal realities is necessary. The balance between constitutional stability and constitutional development lies in the development of an amendment process, which on the one hand allows the constitution to be edited in cases where it is necessary to improve constitutional regulation, on the other hand, prevents its arbitrary change.

Keywords: constitutional reform, constitutional development, constitutional stability, amendments to the Constitution, Venice Commission, interpretation of the constitution, comparative constitutional law, constitutional stability

For citation. Khamchieva Z. B. Constitutional Development and Constitutional Stability are Two Sides of the Same Coin. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 5, pp. 95—103. DOI: 10.12737/jflcl.2022.068

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Yuliya M. Lev
Academy of Public Administration under the President of the Republic of Belarus, Minsk, Belarus, wilney@mail.ru, https://orcid.org/0000-0002-4785-1422

Abstract. The essence and legal nature of relations in the field of cloud computing using are considered. Due to the high demand for cloud computing among consumers — individuals, special attention is paid to the problem of protecting the rights of users of cloud technology services provided in exchange for the data of such users. Determining the legal nature of such contracts and classifying them as unnamed contracts makes it impossible to use the methods of protection enshrined in consumer protection legislation. At the same time, user data is currently of interest to cloud computing providers and is being actively commercialized. Awareness of the special value of user data is reflected in foreign legislation. Thus, the adoption of EU Directive 2019/770 on certain aspects of contracts for the supply of digital content and digital services addresses this issue by referring to the counter representation “digital representation of value”, which includes personal data of users.
The purpose of the article is to determine the directions for improving the domestic legal regulation of protecting the rights of users of cloud technology services provided without monetary payment. Data of individual users under cloud computing contracts are not considered as a counter representation, but at the same time they are used in the business of cloud computing provider, raising the question of whether they should be subject to consumer protection laws. In addition, the ways to protect consumer rights provided for in Article 11 of the Civil Code of the Republic of Belarus and consumer protection legislation cannot be fully applied to relations arising from the use of cloud computing on a “non-monetary” basis.
Research methods: general dialectical method, system analysis method, formal legal and comparative legal methods.
Conclusion: the development of information, communication technologies and e-commerce in the Republic of Belarus necessitates the revision of legal regulation in the field of consumer protection. At the same time, the presence of a well-established set of relations in the field of using cloud technologies makes it possible to speak about the need for further understanding of the problem of protecting the rights of consumers of cloud technology services provided on a “non-monetary” basis, including an analysis of the prospective development of an independent legislative act that establishes features not only of protecting consumer rights services of cloud technologies, but also regulating other issues of rendering cloud computing.

Keywords: cloud computing, cloud computing provider, consumer protection, paid services, personal data, civil law

For citation. Lev Y. M. Protection of the Rights of Cloud Computing Users Provided on a “Non-Monetary” Basis: Prospects for Legislative Regulation in the Republic of Belarus. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 5, pp. 104—114. (In Russ.) DOI: 10.12737/jflcl.2022.069

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Anzhela S. Perina
Saint-Petersburg Law Institute (branch), University of Prosecutor’s Office of the Russian Federation, St. Petersburg, Russia, rusangel_p@mail.ru

Abstract. In the 21st century the problem of the emergence of new ways of committing crimes against the person caused by scientific and technological progress is becoming increasingly widespread. The cross-border nature of criminal encroachments makes it necessary to work on the unification of criminal law norms regulating the digital sphere.
The objectives of the study included the analysis of international documents that reflect the problem of using computer technology to commit crimes or for criminal purposes, as well as a comparative analysis of the criminal legislation of individual countries participating in the Convention, establishing criminal liability for some of the most common crimes against the person committed using information and communication technologies (hereinafter — ICT), and of the Russian Federation. Within the framework of the scientific article, such crimes include crimes against minors, violation of the secrecy of correspondence and privacy, incitement to suicide, sexual crimes.
According to the results of the study, it was found that the experience of various countries in criminalizing acts in which ICTs are used and which are directed against the individual is ambiguous. At the international level, the issue of the use of ICT against the individual has not been raised in detail; the regulation of the problem is fragmentary. At the same time, a number of provisions of international documents and the experience of criminalizing the acts in question in a number of countries can be used in domestic criminal legislation, in particular on the issue of establishing criminal liability for cyberbullying. The question is also raised about the expediency of expanding the list of aggravating circumstances by including a method of committing a crime using computer technology. The expediency of combining international efforts to unify the legal regulation of issues related to the group of crimes under consideration is indicated.

Keywords: criminal law, cybercrime, incitement to suicide, crimes against sexual freedom, crimes against sexual integrity, information and communication technologies, information crimes, crimes against minors, cyberbullying, violation of the secrecy of correspondence, aggravating circumstances

For citation. Perina A. S. The Phenomenon of the Use of Computer Technology in the Commission of Crimes Against the Person: Analysis of International Documents and Criminal Legislation of Individual Countries. Journal of Foreign Legislation and Comparative Law, 2022, vol. 18, no. 5, pp. 115—126. (In Russ.) DOI: 10.12737/jflcl.2022.070

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