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20 Y ear s of Ne w Cons tuonal R 20 e Years of New f orms in E Constuonal Reforms as in Eastern Europe t ern Eur ope | Eastern European Experience E as t ern Eur Edited by opean Experience Gennadi N.Cebotarev Peeter Järvelaid Rein Müllerson 20 Years of New Constitutional Reforms in Eastern Europe. Eastern European Experience 20 Years of New Constitutional Reforms in Eastern Europe. Eastern European Experience Edited by Rein Müllerson Gennadi N.Cebotarev Peeter Järvelaid Tallinn University Law School 2015 EAST-WEST STUDIES Journal of Social Scienses of Tallinn University Law School Editorial Board of the Journal of Social Sciences of Tallinn University Law School Professor Peeter Järvelaid, Tallinn Univesity Law School, Estonia Professor Andreas Zimmermann, University of Potsdam, Germany Professor Rein Müllerson, Tallinn University Law School, Estonia President of the Institut de Droit International (2013-2015) Professor Lauri Mälksoo, Tartu University, Estonia Professor Sienho Yee, Wuhan University, China Professor Rein Raud, Tallinn University, Estonia Professor Martti Koskenniemi, Academy of Finland Professor Nigel White, The University of Nottingham, United Kingdom Professor, Dr.iur. Arturs Kucs, Head of Department of International and European Law University of Latvia Faculty of Law Professor Hugh Corder, of Public Law, University of Cape Town Associate Professor Mart Susi, Head of Research Tallinn University Law School, Estonia Dr. Marcel Szabó (PhD), Ombudsman for Future Generations at the Office of the Commissioner for Fundamental Rights,Hungary - Chair of the European Law Department at the Faculty of Law and Political Sciences of the Pázmány Péter Catholic University, Hungary Mr. Raivo Vare, Estonia Copyright 2015: Tallinn University Law School Narva mnt. 29 10120 Tallinn http://www.tlu.ee/oigus/ ISSN 1736‐9541 ISBN 978‐9949‐29‐232‐5 CONTENTS Peeter Järvelaid – Constitutional Reforms in Europe in the 20th Century as a Repository of Legal Ideas. ................................................................. 7 Rein Müllerson – Pre-emptive military action: a valid option under international law or a threat to international peace? ............................................... 9 Gennady Cebotarev – Divison of powers: the conception and present constitutional practice ............................................................................................. 15 Mikhail Kleandrov – Development of the mechanism of constitutional control in the Russian Federation ........................................................................... 23 Peeter Järvelaid, Taavi Minnik. – Researching the History of European Public Law and Constitutional Law at the end of the 20th Century and in the first decade of 21st Century: The Cooperation between Hungarian-Finnish-Estonian Legal Scientists ........................................................ 33 Mart Susi - Doctrinal convergence of the Russian Constitutional Court and the European Court of Human Rights ............................................................. 45 Mikhail Borodach – The Development of the Constitutional Basis of Corruption Counteraction in Russia: Reflections on the Modern Russian Procurement System ................................................................................ 59 Kalle Liiv, Ilmar Selge - Compliance of the right to issue regulations of the Bank of Estonia with the constitution and EU law ..................................... 67 Larisa Zaitceva, Tatiana Anbrecht – Legal support obligations of the Russian Federation to create the conditions for a decent life rights ..................... 81 Mariya Riekkinen – The right to take part in the conduct of public affairs: a focus on international law and constitutional regulation in Russia ................... 87 Ivan Tarasevits – Legal means of protecting Russian society from threats in the religious sphere: constitutional foundations ............................................... 97 Irina Bakulina – The Public Chamber of the Russian Federation activity as guarantee of citizens’ constitutional rights to NGOs ....................................... 107 Elena Gladun – The development of constitutional norms on indigenous peoples’ rights for traditional use of lands and natural resources ........................ 113 Raivo Palmaru; Jaak Roosaare - Voters as Nontrivial Machines: Valuation of Political Actors by the Press and Estonian Voters’ Preferences from 1999 to 2007 ........................................................................... 121 CONSTITUTIONAL REFORMS IN EUROPE IN THE 20TH CENTURY AS A REPOSITORY OF LEGAL IDEAS There is no doubt that the final decades of the 20th century have changed the world significantly. For instance, for Eastern European researchers have new possibilities opened to move freely throughout the world in order to improve their studies. Also the increasingly globalizing world has given us new technical possibilities to communicate faster which, for instance, has given encouragement to cooperate in the fields of sciences, where previously there was no cooperation at all or it was rare. It is worth remembering that the 20th century began with high expectations for comparative law, and till the world wars we can see a sort of “triumph” of comparative law – first in Europe and then after the Second World War in the whole world. For me personally, the French historian Jacques Le Goff (1924-2014) has been a great example in my scientific work. He emphasized the knowledge of European history as one of the ways for the development of a new situation, where we (including the younger generation) are trying to move simultaneously in the past and on geographical maps. I have already been applying this method to my research work now for two decades, and have to say that this has opened the opportunity not only to examine the constitutional development in Europe, but also to move around in different countries, communicating with local colleagues, which for me has increased the opportunities to understand the peculiarities in different constitutional developments, at the same time discovering many similarities in these processes. If we would take a look at the research of constitutional law made by scientists in Europe in the 20th century and the first decade of the 21st century, then we would notice a certain respect for the old traditions, which at the same time in some sense ignores one part of the ideas which influenced constitutional law to a rather great extent. Legal scientists have been characterized studying mostly so-called “doctrines of the winning ideologies” and casting aside the ideas which were developed by talented jurists in different periods, which remain for the majority of researchers into so-called “grey zone”, for instance “in the final phase of the disappearing ages and which often due to the twists and turns of the history did not find its way in the constitutional practice.” For instance, there is the most fascinating “sediment” of the ideas by the legal scientists who were working in different universities of the Russian Empire before the outbreak of the First World War and whose ideas, due to the subsequent regime changes, were meant never to be realized. Also for most researchers this has left a side to the discussion of the constitutional law from the period of disintegration of the Soviet Union (1985-1990), which actually gave output to the development of the national constitutions of independent states. For instance, the Constitution of the Russian Federation (1993) did not come from nothing, but it was the work of the legal scientists who were inspired by the “fruits“ of the legal discussions of Perestroika. If nowadays European legal historians are preparing studies representing the history of the last one hundred years of the European state system, then the years 1991-1992 are analogous to a new beginning, which for today has already provided a long constitutional trial practice, which is waiting for the different legal scientists to look at this interesting material afresh and to use the methods of comparative law. When the post-World War I upheavals are sometimes referred as a group of countries, ranging from Finland to Turkey (from Helsinki to Istanbul)1,then in this case if we are focusing in the last decades of the 20th century and the first decades of the 21st century, we could also speak about a certain group of countries ranging from Finland to Mongolia2 (from Helsinki3 to Ulan-Bator). In scientific research the collaboration between scientists could have a varying intensity, but the best results can always be achieved in the case if between colleagues from different countries there exists a really close and practical tie. It must be acknowledged that in recent years a very good working relationship among colleagues, who are focused on researching the constitutional law has developed between Tallinn University and Tyumen State University. This collaboration has led to this collection of articles, which hopefully gives colleagues from other countries an opportunity to think along with us about the developments of the constitutional law in our countries. Of course, we cannot turn back to a wider (more global) analysis of this topic, which should provide us with a good framework for our research so the following generations of researchers could better understand the times which were given to our generation for professional and personal fulfillment. Historians have long come to an understanding that no generation has ever been able to

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