Limits of Constitutional Amendments: Russian Constitutional Court

Abstract

Constitution of any polity defines its legal order on the basis of a certain system of values. Fundamental values of a constitutional democratic state must be protected not only during a routine implementation of the constitution but also during its amendment procedures. However, the problem of unconstitutional constitutional amendments is complicated and is connected to two different, although interrelated, questions. First, one has to decide which constitutional provisions are unchangeable; second, one has to construct a model of a substantive review of amendments. There are different approaches to these questions in different countries in the world including: (1) explicit eternal clauses and explicit competence of the constitutional court to review amendments from substantive point of view; (2) explicit eternal clauses, silence on the competence and further either (2a) a self-supporting decision of the constitutional court to review amendments or (2b) a refusal to judicial review and maintenance of eternal clauses rather as “soft law”; (3) absence of explicit eternal clauses supplemented by an activist judicial position preserving certain parts of the constitution; and (4) absence of explicit eternal clauses and refusal to judicial review of amendments.

To reconstruct these models and argumentation behind them, jurisprudence of different bodies of constitutional review is considered. The derived conclusions can be applied to decisions of the Russian Constitutional Court who previously (until 2020) did not have explicit competence to review amendments, denied to review them a posteriori, but was involved in the ad hoc review procedures in 2020.