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E.S. Anichkin, Yu.A. Rudt

Constitutional Balancing in Russia: Practice and Perspectives

2019. No. 5. P. 80–100 [issue contents]
The article is devoted to the study of the value approach to the analysis of constitutionaldisputes in the practice of the Constitutional Court of Russia. The research objective isto identify the features of the balancing constitutional values in constitutional judicialpractice and to systematize the most frequently encountered options for balancing.For analysis system-structural, formal legal, comparative legal methods, methods ofinterpretation of law and forecasting were used. The study revealed the idea of a balanceof constitutional values as a principle of constitutional interpretation. It is indicated thatthe Constitutional Court of Russia plays a subsidiary role in relation to the legislator in thesearch and establishment of a balance of constitutional values. Balancing is one of themethods of constitutional interpretation. Russian and foreign doctrines converge in theidea of balancing as an element, method of a rational decision-making in the constitutionallegal dispute. Another similar element is the propensity for theoretical recognition ofequal importance, the absence of a linear hierarchy of values. As the empirical base ofthe study, the final decisions of the Constitutional Court of Russia in the period of 2011to 2017 were used. It has been found that the judgments of the Court most often refer tothe value of the rights and freedoms of man and citizen (Article 2 of Russian Constitution).Since these references do not always have a significant value for argumentation, theirtemplate nature is indicated. Practice allows arguing that constitutional values, asenshrined in the Constitution, should be protected and balanced not only by the effortsof the constitutional interpretation, but by the efforts of all branches of law. Maintaininga balance of constitutional values becomes the task of all law enforcement entities andcitizens. There are three frequently found balancing models in the Constitutional Court’sjudicial practice: based on hierarchical dominance; based on constitutional principles;delegated balancing. The main perspective of the development of balancing in judicialpractice is associated with the improvement of the principle of competitiveness in theconstitutional process. To do this, it is proposed to publish materials of constitutionalcases and to add sections in the structure of judgments.
Citation: Anichkin E., Rudt Y. (2019) Konstitutsionnoe balansirovanie v Rossii: praktika i perspektivy [Constitutional Balancing in Russia: Practice and Perspectives]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 5, pp. 80-100 (in Russian)
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