Release:
2019, Vol. 5. №2About the author:
Alexander V. Salenko, Dr. Sci. (Jur.), Master of Law (LL.M., Göttingen), Associated Professor, Higher School of Law of the Educational and Scientific Cluster “Institute of Management and Territorial Development” of Immanuel Kant Baltic Federal University, Member of the Qualification Board of Judges of the Kaliningrad Region, Kaliningrad, Russia; asalenko@kantiana.ruAbstract:
For twenty-five years, following the adoption of the Russian Constitution on 12 December 1993, the Constitutional Court of the Russian Federation has developed an extensive judicial practice reflecting the actual implementation of individual constitutional human rights and freedoms. Of particular significance for the building of a democratic state governed by the rule of law is the constitutional freedom of peaceful assembly, which is examined by the author through the analysis of the case-law of the Russian Constitutional Court over the 1993 to 2018 period. The author concludes that the Russian Public Assembly Law began to emerge after the enactment of the Federal Law on Asseblies, Meetings, Demonstrations, Processions and Picketings, namely, in 2012-2018, when the Russian Constitutional Court has adopted seven rulings concerning the Article 31 of the Russian Constitution. Based on the analyses of these rulings, the author holds that the Russian Constitutional Court has quite often used its own legal approach regarding review of the constitutionality of legal norms, when challenged regulations were declared to be constitutional in general, but the Court also critiсized legal defects of disputed regulations. This research paper tries to define when the application of this legal techniques was justified and when not. The author comes to the conclusion that in deciding the cases on the freedom of peaceful assembly the Russian Constitutional Court refrained from the use of the judicial activism and made rather big concessions to lawmakers and law enforcement authorities. Thus, in the ruling on reform of the legislation on the freedom of assembly, the Russian Constitutional Court unjustifiably turned a blind eye to serious procedural violations of due legislative process made by the Russian lawmakers and has declared the contested law to be constitutional for the most part. The author considers that this tolerant approach of the Russian Constitutional Court with regard to gross violations of the constitutional legislative procedures has a negative impact on the legal certainty and stability of the country’s legal system. The author also criticizes the ruling of the Constitutional Court of Russia on the case regarding the MP’s meetings with electors, which in general are equated with public events. These new legal provisions disturb the balance between the legislative and executive branches, giving the dominant character to the latter. The general conclusion of the author is that the number of corresponding cases of the Russian Constitutional Court on the freedom of peaceful assembly will continue to increase in the future. There are two main reasons for these expected developments: the raising of political and civic activeness in modern Russia on the one hand, and on the other — the general restrictive character of the Russian legislation on public events, which are mostly interpreted by the law enforcement agencies as the potential threat to public order and security, and not as the usual everyday practice of modern democracy.
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