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KAZAN UNIVERSITY LAW REVIEW, 2017, том 2, № 1

научно-практический журнал
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KAZAN UNIVERSITY LAW REVIEW : научно-практический журнал. - Москва : Деловой стиль, 2017. - Т. 2, № 1. - 87 с. - ISSN 2541-8823. - Текст : электронный. - URL: https://znanium.com/catalog/product/1705383 (дата обращения: 28.03.2024). – Режим доступа: по подписке.
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KAZAN UNIVERSITY LAW REVIEW
Volume 2, Spring 2017, Number 1

Journal President:
Ildar Tarkhanov (Kazan Federal University, Russia)

Journal Editor-in-Chief:
Damir Valeev (Kazan Federal University, Russia)

       International Editorial Council:
                         Sima Avramovic
                 (University of Belgrade, Serbia)
Susan W. Brenner
       (University of Dayton School of Law, USA)
                   William Elliott Butler
(The Pennsylvania State University, USA)
                      Michele Caianiello
                   (University of Bologna, Italy)
                         Peter C.H. Chan
(City University of Hong Kong, China)
Hisashi Harata
                    (University of Tokio, Japan)
                            Tomasz Giaro
                 (University of Warsaw, Poland)
                      Haluk Kabaalioglu
                   (Yeditepe University, Turkey)
                            Gong Pixiang
             (Nanjing Normal University, China)
                    William E. Pomeranz
                      (Kennan Institute, USA)
                              Ezra Rosser
(American University Washington College of Law, USA)
                      George Rutherglen
                   (University of Virginia, USA)
Franz Jurgen Sacker
             (Free University of Berlin, Germany)
Paul Schoukens
(KU Leuven, Belgium)
                 Carlos Henrique Soares
(Pontifical Catholic University of Minas Gerais, Brazil)
                   Jean-Marc Thouvenin
(Paris Ouest Nanterre La Defense University, France)

Russian Editorial Board:
Aslan Abashidze
(Peoples’ Friendship University of Russia, Russia)
Adel Abdullin
(Kazan Federal University, Russia)
Lilia Bakulina
(Kazan Federal University, Russia)
Igor Bartsits
(The Russian Presidental Academy of National Economy and Public Administration, Russia)
Ruslan Garipov
(Kazan Federal University, Russia)
Vladimir Gureev
(Russian State University of Justice
(RLA Russian Justice Ministry), Russia)
Pavel Krasheninnikov
(State Duma of the Russian Federation, Russia)
Valery Lazarev
(The Institute of Legislation
and Comparative Law under the Government of the Russian Federation, Russia)
Ilsur Metshin
(Kazan Federal University, Russia)
Anatoly Naumov
(Academy of the Prosecutor's Office of the Russian Federation, Russia)
Zavdat Safin
(Kazan Federal University, Russia)
Evgeniy Vavilin
(Saratov State Academy of Law, Russia)

KAZAN UNIVERSITY LAW REVIEW
Volume 2, Spring 2017, Number 1

                        Journal executive secretaries:
Marat Zagidullin
(Kazan Federal University, Russia)
Jaroslaw Turfukowski
                        (University of Warsaw, Poland)

Editor of English texts:
Randolph W. Davidson (USA, Italy)

                        Assistant of Editor-in-Chief:
Elena Bazilevskikh (Kazan Federal University, Russia)



Journal team:
     Rustem Davletgildeev, Ruslan Sitdikov, Ivan Korolev, Maxim Voronin, Marat Shamsutdinov, Ramil Gayfutdinov, Ivan Novikov, Iskander Asatullin, Durmishkhan Afkhazava, Nikita Makolkin, Ekaterina Avvakumova, Azalia Gubaydullina, Lilia Sharipova, Abdulbosit Muzaffar ugli Makhkamov, Murat Kamarov, Ekaterina Avvakumova, Anastasia Kiryushchenko, Viktoriia Chernova, Kamilla Khabipova, Alina Astafyeva, Anastasiia Bychkova.

«KAZAN UNIVERSITY LAW REVIEW» (registered by The Federal Service for Supervision of Communications, Information Technology and Mass Communications in Russia on 17 November 2016
(certificate number PI № FS 77-67763 (ПИ № ФС 77-67763))

ISSN 2541-8823

Publication:
four issues per year (one issue per quarter)


The reprint of materials of the journal “Kazan University Law Review” is allowed only with the consent of the Publisher. Link to the source publication is obligatory. The Publisher or the Editor’s office does not render information and consultations and does not enter into correspondence. Manuscripts can not be returned. The Founder and the Publisher are not responsible for the content of advertisements and announcements.

Opinions expressed in the publications refers to the authors and do not necessarily reflect the official view of the organizations they represent.

KAZAN UNIVERSITY LAW REVIEW ■ Volume 2, Spring 2017, Number 1


        TABLE OF CONTENTS



   Damir Valeev (Kazan, Russia)
   Welcoming remark of the Editor-in-Chief ..........................4

ARTICLES:
   Taliya Khabrieva (Moscow, Russia)
   Constitutional reform: theoretical issues ........................6
   Aslan Abashidze (Moscow, Russia)
   Role of the science of International Law in the prohibition against and restriction on the use of force in international relations . 17

COMMENTS:
   Yu Haimei (Nanjing, China)
   Analysis of the three federal target programs on “The development ofthe Russian judicial system................................... 40
   Guillaume Payan (Toulon, France)
   A new legal instrument to ensure effective European standards on enforcement of judicial decisions: adoption of a good practice guide by the Council of Europe ....................................... 55

CONFERENCE REVIEWS:
   Elena Luneva (Kazan, Russia)
   Zavdat Safin (Kazan, Russia)
   Review of the roundtable conference dedicated to the centennial celebration of the founding of the Republic of Tatarstan on the topic “History of the development of environmental legislation in Tatarstan:
   beginnings, present status, prospects” (April 15, 2016.......... 70

KAZAN UNIVERSITY LAW REVIEW ■ Volume 2, Spring 2017, Number 1

Dear Readers,

    I would like to present for your attention the first regular issue of the Kazan University Law Review 2017.
    The articles in the issue take up current questions of theory and practice of civil procedure in Russia and in other countries.

    The title article is written by our colleague, outstanding scholar, academician and alumna of Kazan University Taliya Khabrieva, Director of the Institute of Legislation and Comparative Legal Studies with the government of the Russian Federation. In her article, the author expounds the characteristic features of constitutional reform as seen in the numerous modifications in constitutions of recent times. The author considers the achievements of political studies as well as analysis and results of research by the Venice Commission of the Council of Europe on the challenges of changing the basic law introduced in various regions of the world, and suggests a broad approach to reform that takes into account accompanying economic, social and political transformations.
    A central topic of the world order - the prohibition of and restriction on the use of force in international relations - is analyzed in the article by one of the leaders in the science of international law, Professor Aslan Abashidze of the Russian University of Friendship of Nations and the International State Institute of International Relations. In his view, the science of international law as a product and, at the same time, the engine of social development has played and continues to play an important role in limiting and prohibiting the use of force in international relations.
    It is important for Russian legal doctrine and comprehension of law to search out and invite foreign legal experience. For this reason, our editorial policy assumes the publication of articles written by colleagues from leading universities across the world in each and every issue of our journal. We are therefore grateful to our colleagues Professor Guillaume Payan of the University of Toulon (France) and Haimei Yu, Researcher at the Institute for Chinese Legal Modernization Studies (China), for contributing their articles on current topics of an international character.
    The issue concludes with a review of the roundtable conference that was held at Kazan Federal University in 2016, and which was dedicated to the centennial celebration

KAZAN UNIVERSITY LAW REVIEW ■ Volume 2, Spring 2017, Number 1

of the founding of the Tatar Autonomous Soviet Socialist Republic. The material presented was prepared by Senior Lecturer Elena Luneva and Professor Zavdat Safin on the topic of the conference, “History of the Development of Environmental Legislation in Tatarstan: beginnings, present status, prospects”. The importance of conducting and highlighting such scientific forums is undeniable. In particular, because the participating representatives of legislative and enforcement bodies in the field of environmental protection and rational nature management as well as scholars of environmental law have the capability to eliminate the uncertainty and inconsistency of legal regulation of environmental relations in Russia and in the Republic of Tatarstan through their joint efforts.
    I would like to thank all of the authors for their insightful and stimulating contributions.
    And I sincerely welcome all of you, our readers, to this first regular issue of our journal.

                                                                  With best regards, Editor-in-Chief Damir Valeev

KAZAN UNIVERSITY LAW REVIEW ■ Volume 2, Spring 2017, Number 1





            ARTICLES


                                     Taliya Khabrieva

                                     Doctor of Legal Sciences, Professor, Vice-president of the Russian Academy of Sciences, Director of the Institute of Legislation and Comparative Legal Studies under the Government of the Russian Federation

        CONSTITUTIONAL REFORM: THEORETICAL ISSUES

DOI: 10.24031/2541-8823-2017-2-1-6-16

   Abstract: This paper examines the criteria and features of constitutional reform. It draws on the experience of constitutional reforms in light of political study achievements, and the analysis and results of research by the Venice Commission of the Council of Europe on the challenge of constitutional changes that have been introduced in various regions of the world. The author suggests using a broad approach of identifying criteria of constitutional reforms which include not only the self-transformation of the basic law, but also all accompanied social and political changes. Particular attention is given to the consolidation of the reform, its implementation, which ultimately determines the success of constitutional modernization. The author sets a mission for the further development of constitutional reform theory, together with representatives of the other social sciences in terms of an axiological approach and modern ideas on social processes.

   Keywords: constitutional reform, amendment process, Venice Commission

   In Russia, the twentieth century could be considered a period of major constitutional change brought about by the socialistic pattern of the first Russian Constitution and the development of new constitutional models after the Second World War. Elsewhere in the

TALIYA KHABRIEVA

7

world, in the same period and extending into the early twenty-first century, there have been constitutional transformations, whose magnitude and pattern differed noticeably from those of earlier periods. The development of countries has brought new features, not only with respect to integration, but also with respect to social and political conflict, which at times has led to disintegration. These factors have implications for political and constitutional activities all over the world, but in the different regions implications that are not uniform.¹
    To paraphrase a famous saying, it could be argued that the constitution in the developed society is not dogma; it is a vital social tool. It can be modified owing to a community need or as the result of a political project, which can be imposed from above. Usually, constitutional changes occur as the result of the gradually accumulated and ever-increasing impact of certain social, political and legal considerations, but ultimately constitute an affirmative action of bold political leadership. Solutions have to take into account the need for the regulation of new relations, which is raised by the level of constitutional regularity, changing value-based benchmarks (as an example: reform in the former socialist countries) and the other urgent demands in shifts in public life, but it can be arbitrarily minor in terms of constitutional legal relations. It is impossible to create a common, eternal text of the constitution that will serve society equally well at all times in its historical development. And the motivation for change of the constitution may arise outside the country, for instance in order to fulfil international obligations or requirements necessary for entry into international structures, such as the European Union and the Council of Europe. Studies confirm that many constitutions of modern states were transformed for such reasons.¹ ²
    The principal legal tool of development and change of the constitution is the amendment process. The adoption of amendments to the Armenian Constitution in 2015 is a recent example, amendments which have affects on all the principles of the basic law: human rights, the role of the church, the organization of the judiciary, the form of government, and others. As a result, the text of the constitution has been considerably revised, and the amendments themselves evaluated by a number of authors and the Venice Commission of the Council of Europe as a “new constitution”.³

¹ See: KHABRIEVA T.JA. Konstitucionnye modeli i osnovnye jetapy konstitucionnogo razvitija [Constitutional models and main stages of constitutional development] // Zhurnal zarubezhnogo zakonodatel’stva i sravnitel’nogo pravovedenija = Journal of foreign legislation and comparative jurisprudence. 2005. Pervyj vypusk [First issue]. p. 3-9; Khabrieva T.Ja. Konstitucionnaja reforma vsovremennom mire [Constitutional reform in the modern world]. M., 2016. (in Russian).

² See: KHABRiEvA T.JA. Konstitucionnye reformy v sovremennom mire [Constitutional reform in the modern world] // Vestnik Rossijskoj akademii nauk = The Herald of the Russian Academy of Sciences. 2016. I. 86. № 7. p. 579-586. (in Russian).

3

   CDL-AD (2015) 037e, CDL-AD (2015) 038.

KAZAN UNIVERSITY LAW REVIEW ■ Volume 2, Spring 2017, Number 1

8

    “Constitutional re-engineering” is the term coined to describe the process of adoption of numerous amendments in the text of the Constitution of the Kyrgyz Republic in 2016.¹
    The variety of the forms of changes to the text of constitutions includes - stylistic, terminological and substantial; and at the same time all implying different methods such as exception, replacement, new numeration, inclusion of a new section, and other methods as well. The most significant change may affect the structural areas of sections of the constitution, including rights and freedoms, the national basis of the state and its social system. The set of descriptive terms is huge: “the adjustment”, “the new version”, “the partial revision”, “the improvement”, “the major review” and even “the constitutional revolution”.* ²
    For example, the Venice Commission employs such terms as “the major review or the adoption of a new Constitution”, “the radical constitutional reform”, “the limited constitutional reform”, “major or minor reforms”, “the fundamental changes to the Constitution”, “the constitutional change in the narrow and broader sense, including the adoption of a new constitution” in the analysis of amendments to a constitution.³
    The question of whether and when reform of the law can be considered “constitutional re-engineering” is relevant in theory and in practice even within the widespread application of the definition “the constitutional reform” and recent specifications of significant or slight undertakings in respect of changes to a constitution. Many researchers acknowledge that there are non-traceable “facets” between the formation of a new model legal regulation (“modernization”) and constitutional reform.⁴
    Some authors note that this term has no clear definition, when considering constitutional reform as a supplement or replacement of the constitution and has proven to be more profound with regard to changes in societies.⁵

1

   See: CDL-AD (2016) 025.

2

   CDL-AD (2010) 001, sect. 14, 16, 19, 23, 56, 104-106, 109, CDL-AD (2007) 047.

3

   CDL-AD (2010) 001, sect. 14, 16, 19, 23, 56, 104-106, 109, CDL-AD (2007) 047.

⁴ See: Sm. podrobnee: Balytnikov V., Ivanov V. Konstitucionnaja modernizacija: obnovljaja -sohranjat’ sohranjaja - obnovljat' [Constitutional modernization: to save by updating and to update by maintaining] // Konstitucionnoe pravo: Vostochnoevropejskoe obozrenie = Constitutional Law: East-European review. 2000. № 2 (in Russian); BELKIN A.A. Peresmotr konstitucii (teoreticheskie aspekty) [Revision of the Constitution (theoretical aspects)] // Pravovedenie = Jurisprudence. 1995. № 1. p. 73, 89 (in Russian); BUTUSoVA N.V. O modernizacii rossijskoj Konstitucii (celi, zadachi, puti osushhestvlenija) [About modernization of the Russian Constitution (goals, tasks, ways of implementation)] // Konstitucionnoe i municipal’noe pravo = Constitutional and municipal law. 2013. № 1. p. 5-10 (in Russian); MEDUSHEVSKIJ A.N. Konstitucionnaja modernizacija Rossii: strategija, napravlenija, metody [Constitutional modernization in Russia: strategy, directions, methods] // Zakon = Law. 2013. № 12. p. 41-52. (in Russian); BoNDAR’ S.N. Konstitucionnaja modernizacija rossijskoj gosudarstvennosti v svete praktiki konstitucionnogo pravosudija [Constitutional modernization of Russian statehood in the light of constitutional justice]. M., 2014 (in Russian).

⁵ See: KIREEV V.V. Teoreticheskie problemy reformirovanija Konstitucii Rossijskoj Federacii [Theoretical problems of reforming the Constitution of the Russian Federation]. Cheljabinsk, 2008. (in Russian). Brandt M., Kottrell D., Gaj Ja., Regan Je. Razrabotka i reforma konstitucii: vybor processa [The development and reform of the constitution: selection of the process]. Kiev, 2011. p. 351 (in Russian).

TALIYA KHABRIEVA

9

    The Venice Commission specifies that reviewing or updating new constitutions have formal differences.¹
    Therefore, changes from the external view can be accepted as correction and modification of the text, from the substitution of particular terms to the introduction of a new institution and even a shift of constitutional model within a limited extent of the constitution. But a large-scale modernization is not always attributed to a constitutional reform. Conversely, limited constitutional reforms could be implemented in a totally new constitution.¹ ² All the above indicate that any proposed changes to a constitution should receive the learned input of legal scholars and they should also take into account the concrete historical situation in the country. The dictionary reports that reform (Latin, reformo) means the improvement or amendment of something wrong, corrupt, unsatisfactory, etc. A constitutional amendment refers to the modification of the constitution of a nation or state. In many jurisdictions, the text of the constitution itself is altered; in others, the text is not changed, but the amendments change its effect. The method of modification is typically written into the constitution itself. This is the main way in which amendments differ from other changes to constitutional text. In the larger society, social studies also produce reforms that affect many aspects of public life to varying degrees. However, “the magnitude”, the duration and other quantitative indicators of such reforms are rather evaluative categories. The reform process may seem all-encompassing, could be lengthy, incremental, but an assessment of the depth of the change cannot immediately be estimated. More often it can be made only at “the end”, on reaching, in the process of ongoing changes, qualitative achievements. And also, an analysis may have no results at all. This means that reform did not take place. History knows many examples of such reforms. However, can a “failed reform” be considered a reform if the work did not lead to reforming? We think not: such reforms remain simply a “project”, a “plan of reform”. Furthermore, as shown by a long list of examples, the legal characteristics of changes are not determinant: the reform cannot be reduced to the modernization of a constitution merely as a legal act, even if it is recognized by the basic law, as its implementation extends beyond legal procedural questions and legal technique.
    It is inexpedient to give a definition of the constitutional reform at the contemporary stage of its study, especially because not just the settled legal methodology is required for this purpose.
    Nonetheless, the achieved level of analysis of constitutional amendments (including that by the Venice Commission) allows us to highlight several important characteristics or criteria, which (in the aggregate) permit the identification of features of the phenomenon of constitutional reform among a variety of constitutional modifications.

¹ CDL-AD (2010) 001, sect. 21.

² Ibidem.

KAZAN UNIVERSITY LAW REVIEW ■ Volume 2, Spring 2017, Number 1

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    The list of criteria may vary in the future as new levels of relations develop, new challenges of time and emerging institutions can (and have to) demand their modification and even different means of constitutional regulation. Moreover, theoretical structures always have an “ideal” character and can be considerably corrected by extensive constitutional practice. In fact, prior to its realization the constitutional reform is a perfect “image of the future” in the opinion of its reformers.
    Here then is the list of criteria.
    1.     Constitutional reform is a high-quality transformation of the organic law, affecting its fundamental, basic institutions that also define the framework of modern constitutions - the constitutional status of a person, the basis of social order, the principles of economic, social, political systems and the spiritual life of society. The Venice Commission notes that “[w]hen analysing constitutional amendment” the two most important categories of provisions are, “The institutional rules - on ‘the machinery of government’” and “The bill of rights”.¹ These frameworks seem to be too narrow. The Venice Commission extends this approach in the sense that fundamental constitutional change accompanies political, economic and social transformations, and varies with the essential contents of the constitution.* ² Probably it is also necessary to agree with the broadest approach according to which the result of proper legal reform is the transformation of legal conscience.³
    2.     Constitutional reform is a manifestation and a result of the conservation of constitutional continuity. Therefore even new constitutions can be established. As the Venice Commission points out, if “the forces calling for political reform are strong enough, then changes are to be done through formal constitutional amendment rather than by revolution and upheaval, breaking the too-strict formal constitutional chains at huge cost to society”.⁴ While analysing the constitutional amendments the Commission intentionally excluded “the creation of entirely new constitutions, replacing the old system with a new order, following a constitutional break or revolution” as well as using other illegal and unconstitutional instruments.⁵
    There is also another aspect to this question: the continuity has to be promoted “by a slower and gradual process and abidance by other procedures, than in the daily policy”.⁶

1

   CDL-AD (2010) 001, sect. 130.

2

    Op. cit. Sect. 5, 21.

3

    Zorkin V.D. (2015) Civilizacija prava i razvitie Rossii. [The civilization of law and the development of Russia] Moscow, p. 303.

4

   CDL-AD (2010) 001, sect. 81.

5

   CDL-AD (2010) 001, sect. 21, 18.

6

    Ibidem, sect.75; See: CDL-AD (2008) 015, CDL-AD (2011) 001, CDL-AD (2012) 010.

TALIYA KHABRIEVA

11

Thereby, the Venice Commission frequently warns about the harm of amendments being adopted in haste, emphasizing that they cannot be introduced into a constitution “with every change in the political situation in the country or after a formation of a new parliamentary majority”.¹
    3.     Constitutional reform is primarily a change of a formal constitution. In many legal systems the alternative ways of legitimate constitutional change are through judicial interpretation and unwritten political conventions.¹ ² Constitutional reform will not be accomplished if it represents only a transformation of the present actual constitution (the de facto existing social structure and system of government) when a text of the organic law formally is not touched. Along with actual constitutions new “living” constitutions often arise, but the constitutional changes are not always included in their text. Repeatedly, an alternative to constitutional reform is an evolutionary reforming of the constitution by judicial interpretation without any changes to the text of the constitution. Such reform has the feature of insufficient legitimacy and can lead to serious practical discrepancies between the actual and legal constitutions. For major constitutional change, deliberative, democratic, legal and political procedures for constitutional amendment are clearly preferable to judicial interpretation.³
    4.     Constitutional reform is to include programmatic goals on its implementation which should be explicit in earlier reforms, legal and political documents, programs and in other acts. At the same time, the purposes have to be clear to both reformers and society, and the consequences are to be predictable. The Venice Commission specially notes the need for constitutional predictability and understanding of the possible consequences of constitutional reform.
    5.     Constitutional reform should feature legitimacy at the highest level. This applies to any constitutional amendments, especially to the reform. First of all, the amendments to the constitution should meet the requirements of legality; any constitutional changes should be managed according to the official amendment procedures established by the constitution (an initiative, parliamentary procedure, etc.). The Venice Commission notes that with almost all constitutions such changes are more difficult than with ordinary legislation, but this guarantees constitutional and political stability, and aims at securing broad consensus as well as the legitimacy of the constitution and, through the process, the political system as a whole, efficiency and quality of decision making, and the protection of minority rights and interests.⁴ There are no universal principles and recommendations;

¹ For example: CDL-AD (2015) 014.

² CDL-AD (2010) 001, sect. 109, 246.

³ CDL-AD (2010) 001, sect. 112.

⁴ CDL-AD (2010) 001, sect. 6, 15, 238; CDL-AD (2015) 014.