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ARCHIVE FOR 2019    RUSSIAN

Июнь 2019

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

G. Raimondi The Implementation of European Court Judgments Is Complex, but in General Terms the System Works
Interview with Guido RAIMONDI, former President of the European Court of Human Rights, by Alexander Vereshchagin, Editor-in-Chief of “Zakon” Journal*

 

The Event. Comments of the Experts

Generalisation of Intellectual Property Case Law
Comments by L. Novoselova, E. Pavlova, A. Sergeev, E. Gavrilov, I. Bliznets, V. Kalyatin, A. Semenov, A. Vorozhevich, N. Gulyaeva, E. Oreshin, D. Ermolina, D. Grachev
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Topic of the issue

K.V. Aranovskiy, S.D. Knyazev Execution of ECHR Judgments in Russian Constitutional Justice: By All Means or in Some Ways
Based on legal positions of the RF Constitutional Court, the article addresses complex questions of compulsory execution of the ECHR judgments delivered in cases against Russia. The authors do agree that national authorities should make every effort to execute the final orders of the Strasbourg Court, yet they still admit — due to the recognition of the absolute supremacy of the Russian Constitution — the impossibility of domestic implementation of those decisions that infringe constitutional identity of national legal order.
Keywords: ECHR judgments, positions of Russian Constitutional Court, compulsory execution of judicial orders, supranational system of protection of rights and freedoms, constitutional identity
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A. Blankenagel European Court of Human Rights v. Russian Constitutional Court: Normal Tensions, Hidden Threats and Biased Myopia
This publication is based on a commentary to the article that discusses the relationship between the European Court of Human Rights and the Russian Constitutional Court. Both the article and the commentary are to be published in the forthcoming issue of the Europeаn Journal of International Law. The author offers his vision of the origins and prospects of the resolution of the conflict between the ECHR and the Сonstitutional Сourt diagnosed by many researchers (and often overly exaggerated) on the basis of a critical analysis of the landmark of the cases “Anchugov and Gladkov vs Russia” and “YUKOS case”. As the assessment of the arguments and counter-arguments proposed in the academic literature, as well as the official rhetoric of the courts, shows, each of the parties to this conflict has taken careless steps, and it is important to prevent its further aggravation, because the dialogue between national and supranational courts does much more to protect human rights than the attempts of each party to push its position.
Keywords: European Court of Human Rights, European Convention on Human Rights, Russian Constitution, ECHR case law, Anchugov and Gladkov case, YUKOS case, reasons for non-compliance with ECHR judgments
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P.D. Blokhin Autonomous Interpretation of Notions in ECHR and RF Constitutional Court Practice: A Comparative Research
The present paper discusses autonomous interpretation as a method to construe the European Convention. The author proceeds from the hypothesis that it is comparable in its methods and goals with the constitutional interpretation applied by the Russian Constitutional Court. The use of this tool is examined in three examples involving the notions of “family life” (the use of assisted reproductive technologies), “property” (termination of a real estate lease agreement), and “detention” (placing a minor under supervision). Ultimately, it is concluded that the interpretation of the scope of fundamental rights in constitutional justice is largely consistent with the interpretation of this scope in the caselaw of the ECHR. This, however, does not exclude various conclusions regarding the legality or fairness of a particular restriction of these rights.
Keywords: autonomous interpretation, constitutional interpretation, admissibility of complaint, proportionality of restrictions, family life, detention, possessions
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S.A. Belov The National Mechanism of Execution of the European Court of Human Rights Judgments (Russian Case)
The article focuses on the characteristics of the European Court of Human Right (ECHR) judgments “inside” the national legal systems (in the case of the Russian Federation). The author discusses the effect of these judgments on national law, distribution of powers for their execution among different branches of government, as well as the legal conditions of their execution, coming from the necessity to take both national law and constitution into account. The author concludes that the ECHR judgments are often attributed the same features as domestic court decisions. This approach leads to unsolvable difficulties, inter alia – rejection to execute ECHR judgments, which in turn raises the accusations of non-execution of international obligations by the State. To step over these difficulties the author suggests executing ECHR judgments in a way that works for legal principles: not in an all-or-nothing manner, but to the maximum extent possible correlating them with the requirements of other legal acts in the national legal systems.
Keywords: European Court of Human Rights, European convention on human rights, execution of ECHR judgments, revision of judicial decisions due to change of circumstances, constitutional court, Constitutional Court of Russian Federation, general measures
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A.S. Ispolinov, M.A. Sidorenko Issues of Reparation in the European Court of Human Rights: Award of Just Compensation and Conclusion of Friendly Settlements
The article considers actual issues regarding the award of just satisfaction in the ECHR case-law. The authors analyse a broader approach adopted by the ECHR to the concept of “just satisfaction” in the European system for the protection of human rights. They note that the broad discretion in the matter of awarding just satisfaction and the lack of clear rules for calculating its amount allowed the ECHR to experiment with reparation for damage to the applicants. This situation has a negative impact on legal certainty in this matter and may call into question the legitimacy of the Court’s findings in specific awards. Attention is paid to the issues of awarding just satisfaction in the YUKOS case and the development of this practice in inter-State cases. Particular attention is paid to the friendly settlements and unilateral declarations by States.
Keywords: ECHR, just satisfaction, Convention for Protection of Human Rights, interstate disputes, YUKOS, reparation for damage, friendly settlements and unilateral declarations
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M.L. Galperin, Ya.Yu. Borisova European Convention on Human Rights — the Law of War?
The article is devoted to the problem of comparison between the international human rights law and the international humanitarian law. It is demonstrated, with specific reference to the European Court of Human Rights case law, that all attempts at erasing borders between the two spheres of international law are dangerous and counterproductive.
Keywords: human rights, humanitarian law, international justice
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O.P. Pleshanova Multi-Level Numeration and Nation-Wide Robotisation
“Corporate questions” in media. — Voting robots. — Aggregators and gig. — Crash of Superjet 100. — LegalStreet. — Rebellion in Yekaterinburg. — Court Quarter. — Modernisation of Codes. — Restriction of special criminal proceedings. — High profile criminal cases. — Sanctions, “anti-sanctions” and disclosure of messenger users. — Arbitration and Investment Court System. — Rotation of the State Commission for Academic Degrees and Titles. — Court’s Presidents. — Russian Supreme Court’s Plenary Session concerning IP. — Anti money laundering. — Post Scriptum
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Discussion Board

A.P. Tenishev, A.V. Teslenko Criminal Law Protection of Competition amid Digital Disruption
The article touches upon the law enforcement issues related to the criminal law protection of competition, as a constitutional value, amid the intensive development of digital technology. The authors consider well-known examples of encroachment on the interests of competition using various software programmes, which allows one to draw some conclusions as to how such actions should be treated under the law, as well as to formulate questions that require additional research and scientific discussion.
Keywords: criminal law protection of competition, restriction of competition, cartel, anticompetitive agreements, auction robots
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A.V. Ilyin Witness Immunity for the Representative in Light of Constitutional and Conventional Principles
Currently, the criminal procedure law allows for the interrogation as a witness in a criminal case of a person who is not an attorney but previously participated in a civil case representing a citizen who has the status of suspect or accused (defendant, convicted) in the criminal case, about the circumstances that became known to him in the provision of legal assistance to the latter, despite the fact that in other types of proceedings such witness interrogation is prohibited. The article argues from the standpoint of universal legal values, including the right to judicial protection and qualified legal assistance, that there is a need to extend witness immunity to any representative since such immunity cannot be associated with the regime of attorney client privilege, but on the contrary, the regime of attorney client privilege merely stems from the idea of the need to protect the confidentiality of information, which disclosure causes irreparable damage to the activity (the relationship) where the information becomes known to another person.
Keywords: judicial representation, witness immunity, qualified legal assistance, attorney client privilege, monopoly of advocacy
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Press Release

 

Theory and practice

Yu.B. Fogelson Russian Civil Law in Terms of Sociological Jurisprudence (Supremacy of Civil Code, Good Faith)
The article provides the continuation of a research assessing Russian civil law and legal awareness of Russian jurists from the standpoint of a functional approach to law. In the first part of the study, the main theoretical implications of the functional approach to Russian civil law were examined. Here the theses expressed in the first part are confirmed empirically. The material constituting the empirical part of the study consists of several episodes from the life of modern Russian civil law. This article presents three of such episodes — the supremacy of the Civil Code, the principle of good faith and unfair contract terms.
Keywords: civil law, functional approach to law, Russian legal consciousness, supremacy of Civil Code, good face, unfair terms
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A.V. Basharin, A.A. Petunov Protection of Landowners’ Rights When Changing Urban Zoning Documents
The research area of this article is the study of ways to protect the rights of landowners when changing the documents of zoning. It analyses the existing ways to protect the landowners’ rights when changing zoning documents and briefly describes the historical development of the institute of zoning. The authors examine the institution of compensation for damages resulting from changes in the zoning documents along with relevant practices in foreign jurisdictions as well as problems with its application in Russian law. They analyse how ‘re-zoned’ land plot repayment by a public legal entity can be also used to protect the landowners’ rights and trace the stages of development of this institution in Russian legislation and law-enforcement practice. Besides, another way is revealed to protect the landowners’ rights at changes in documents. This is the legal doctrine of zoning estoppel with its basic elements and possible applications. It is shown that even the United States — the historic birthplace of zoning estoppel — has not solved all the problems associated with its application. In conclusion, the article notes that the current legislation does not contain effective mechanisms to protect the landowners’ rights when changing the documents of zoning, which indicates the need for further improvement of legislation in this area.
Keywords: zoning, land use and building, compensation for damages, land acquisition, zoning estoppel
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I.S. Shitkina Revealing and Considering Common Economic Interests og Group of Companies (Participants of a Holding) When Making Major Transactions and Interested Party Transactions
The author analyses the meaning of common economic interests of the group companies (participants of a holding) in the corporate sphere in general and when making major transactions and interested party transactions by business companies in particular. Although supporting an idea that an interest of a group of companies as a united economic agent shall be taken into account, the author advocates the balance of interests of participants of corporate relations in legal framework and court practice.
Keywords: holding, group of companies, interest, lawful interest, common economic interest of the group of companies, major transactions, interested party transactions, protection of minority rights
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I.M. Shevchenko Legal Nature of Discovery of Documents and Recovery of Property From Company’s (Former) Director Through Bankruptcy Administrator
The author asserts that the legal nature of a bankruptcy administrator’s activities is investigation aimed at identifying the debtor’s assets and obligations; and determining the cause of insolvency. It is argued that the debtor’s director or former director could be forcefully taken to court in case of non-appearance.
Keywords: bankruptcy, requisition of documents, burden of proof, investigative type of process
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A.E. Solokhin E-Justice in Russia: Features, Problems and Prospects
The author, taking into account international experience, analyses the current state of e-justice in Russia, explores its elements: sending documents to the court in electronic form, judicial notice via the Internet, preparation and consideration of the case using documents in electronic form, making judicial acts in the form of an electronic document, the direction of judicial acts and their copies in electronic form. The author reveals the problems of these elements, obstacles to the development of e-justice in Russia and formulates proposals for their solution and overcoming.
Keywords: e-justice, civil procedure, arbitration proceedings, administrative proceedings, electronic document, judicial notice, justice, Internet, execution of a judicial act
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