Russian Constitutional Development: Formal and Informal Practices

Transitional constitutionalism remains the subject of intensive political controversies. On the ground of the Project realized by the Institute of Law and Public Policy (Moscow) this article presents the analysis of the basic constitutional principles (pluralism, separation of powers, federalism, independence of justice, the guarantees of political rights and freedoms) describing the changing character of their implementation in different areas of constitutional practices – legislation, constitutional justice, administrative activity and informal practices and the comparative level of constitutional deviations in each of them. The important new acquirement of this research is the concept and methodology of the constitutional monitoring and recommendations for the full-scale reforms in key areas of Russian constitutional and political settlement. The author shows that the true choice of modern society is not the dilemma - constitutionalism versus its negation but the choice between real and sham constitutionalism with a big variety of intermediate options between them. It is precisely the area, which the author defines as a transitional type of constitutionalism, the field of collision of different political stakeholders. This is an area of unstable equilibrium where the implementation of different legal strategies and technologies may produce a definitive effect.


Introduction
The Russian constitution of 1993 has played a critical role in the processes of transition to democracy in Russia and elsewhere. Its adoption has led to the end and definitive renouncement of a grandiose social experiment on building a communist (socialist) society by utilizing physical force. Due to this fact, the current constitution represents a social choice by the Russian society in favor of democracy, liberal values and human rights. On the one hand, this document is a fullfledged representation of systemic changes seen by the end of the twentieth century worldwide.
On the other hand, it is an independent document that to a large extent has determined the course of governmental changes in today's Russia and in other post-Soviet countries. Contemporary discussions of the Russian constitution, however, put aside the issues of to what extent the constitution has reflected transitional processes around the world; how the process of constitutional modernization has (or has not) fitted into the context of post-Soviet social development in Eastern Europe; how the constitution has impacted on social changes occurring throughout Russia; what areas of social tensions have been revealed during the course of constitutional development; and, finally, given all the above mentioned, what are the prospects for Russia's constitutional system in the future.
Speaking about the significance and prospects of the 1993 constitution, one should look at it from three perspectives: comparative (commonalities and particularities in Russian constitutional development); historical (the past, present and future of the Russian constitution) and functional (how norms correlate with reality and what mechanisms are used for enhancing social efficiency of the constitution). We believe that an analysis based on these three factors will help answer a widely debated issue of the advisability and prospects of constitutional reform in Russia.
The comparative analysis is conducted, horizontally and vertically, on the basis of methods employed by the contemporary sociology of law that primarily investigates the way legal rules operate in society. This approach seems to be highly relevant to Russia where the constitutional crisis of transitional period was simultaneously a political crisis affecting economic, social, national, cultural and legal aspects. Therefore, it is necessary to draw a comparison between constitution (in a strictly legal sense of the term) and constitutionalism (a social movement seeking to transform constitutional norms into reality). There emerges a situation resembling the theory of Rudolf Stammler, according to which the formal aspects of law are far more important than the real ones. Law, to some extent, outpaces reality, hence evolving into a priori category, formal logical structure that is independent of society's (social) reality and becomes an accessory. Yet, law by itself can influence society's reality through producing a variety of strategies for regulating and restricting people's reality, which are based on a purposeful goal setting. Any changes to society's reality (social relations) should be therefore introduced through rational modification of legal rules. Under this approach, the constitution acts as an independent, indispensable element of institutionalization of new socioeconomic relations, which possibly could both accelerate and hamper their development. The constitutional form is still searching for its social content, an idea that has not materialized yet.
This approach makes it possible to interpret the very attitude towards the constitution as a motive of social behavior, and to analyze it pursuant to the theory of rational choice. It also provides an opportunity for reviving the theory of the social contract and for creating a metalaw, i.e. a specific socio-cultural reality enabling one to adapt rational legal rules in the conditions of irrational legal behavior (or legal nihilism). Finally, this approach permits analyzing the process of transition as the dynamics of dissemination of constitutional principles, whereby changing the entire political and legal reality (particularly, by way of the so-called constitutionalization of branch law). Some of the countries apply the notion of "political constitution" that conveys the fundamental commonality of objectives pursued by law and politics in relation to creation of a new social ethics in a democratic society.
Along these lines, we are going to explore the genesis, relevancy and future prospects of the Russian constitution. To examine these aspects, we have formulated the following problems: constitution in the context of worldwide transitional processes from authoritarianism to democracy; a constitutional revolution in Russia; the Constitution of the Russian Federation as a turning point in establishing civil society and law-based state in Russia; constitution and federalism; a form of government and a type of political regime in Russia; potential and strategies for constitutional reform in present-day Russia [Medushevsky 2006]. The original character of the presented approach according our point of view consists in the following: firstly, up to date this is the most systematic and comprehensive research of constitutional principlesfrom their formation in 1993 to current fulfillment; secondly, the elaborated methodic of the constitutional monitoring and expert inquiry makes it possible to move from simple narrative approach to quantitatively exposed and measurable indicators of constitutional principles implementation, to verify the proposed conclusions on constitutional deviations dynamic; thirdly, to formulate the system of concrete and proof-able recommendations for the further Russian constitutional modernization.

Fairness, equality and proportionality in the current post-Soviet "law-related dispute"
Cognitive-information theory demonstrates that the solution of the problem of humanitarian knowledge consists in investigation of any purpose-oriented human behavior which as developed in empiric reality definitely involves the process of fixation of research activity resultsintellectual products. These products as sources of information create the solid ground for reliable knowledge and rational construction of reality images. In contemporary political philosophy three main theory of justice could be verifiedthe idea of distributive justice (formal equality of possibilities in the formation of legal order) [Rawls, 1971]; the idea of legalistic justice (the priority of the existing norm of positive law over abstract moral norms) [Nozick 1974]; and the idea to combine positive law and legal consciousness of any concrete society as the basis for justice [Macintyre A. 1984].
The last approach involves the broader spectrum of argumentation over relationships between positive law, ethical principles and historical tradition, and of their reciprocal relations and practical implementations. In globalized world this kind of problems actively debates by philosophers [Hare, 1998], moralists [Sandel 2010] and political scientists [Walzer M. 2007].
Juridical constructivism (and political projects to resolve acute problems) is appeared in such conditions as a creative orientation for the understanding of society transformation process.
From the one hand it actively construct a new legal reality, from the other hand it actualize problems of legitimacy of legal decisions. In Post-Soviet transitional period juridical constructivism cover three main dimensionsspace, time and the essence of being to demonstrate a sharp conflict between law and justice.
The modern literature gives the principle of fairness three basic interpretations: i) it is understood as the idea of distributive fairness (the formal equality of opportunities within the legal order concept); the idea of legalist justice (the primacy of applicable positive norms over abstract moral principles); and the idea of integrating positive law with the popular traditions of legal consciousness in order to form the foundation for justice. The principle of proportionality gives another perspective on the assessment of legal norms and their application in judicial practice, which is based on a relationship between ends and means. It represents an "objective and reasonable" rationale for legal decisions that rely on constitutional provisions, on the one hand, and reject any interpretation leading to disparity, discrimination and therefore violating the principle of justice, on the other. Thus, the interaction between the principle of fairness and the principle of proportionality plays a decisive role in the judicial interpretation of law which contemporary scholars define as value, norm and fact [Konstitucionnye principy 2014]. Besides, the comprehensive interpretation of law is only possible in the light of all these three competing parameters. Accordingly, the analysis focuses on those areas of legal regulation where there is some destabilization of a "fair balance" between international law and national law; individual rights and collective interests; or there are various forms of inequality and discrimination in respect of rights and freedoms, their ambiguous interpretation and differential application of respective rules in legislative and judicial practice; as well as problems with politically motivated or selective justice.
A number of problems have become particularly relevant to the post-Soviet society.
These include: a conflict between law and fairness within the legal architecture of post-Soviet reality (current debates over a relationship between international law and national law; issues of continuity and discontinuity of legal tradition; the proportion of legal and political arguments put between the legal consciousness of people (perceptions of justice) and positive law (which at best provides a "moral minimum") [Medushevsky 2012].

The concept of constitutional cycles
The concept of constitutional cycles is intended to describe the relationship between static state and changes occurring within a single constitutional process, to identify its similar phases in various historical periods and cultures, and to explain the mechanisms used for setting up a new constitutional order. Thus, the comparative analysis of big constitutional cycles allows us to identify general and specific features of various legal systems and to establish a relationship between legal norms and institutions in the democratic transformation of society. The essence of transitional dynamics is determined by the dialectics of three phases. In order to interpret them we introduce a new terminology -the notions of deconstitutionalization (undermined legitimacy and repeal of the old constitution), constitutionalization (adopting a new constitution and specifying its norms in the sectoral legislation), and reconstitutionalization (introduction of constitutional amendments bringing current rules in line with former constitutional rules and practices). Hence, the full constitutional cycle means a return to the starting-point of all subsequent changes. That is a question of similarity between phases and not of their repetition (which is practically impossible). The constitutional cycle resembles a dialectical spiral: phases of the new cycle repeat analogous stages of the previous cycle, but at a different qualitative level. [Medushevsky 2005].
The question is: what gears this system towards the proper order of alternating stages?
The dynamics stems from a conflict between the law and the social efficiency of constitutional norms. The logic of alternating phases is determined by their various combinations. Moreover, the next combinations, to some extent, are predetermined by the previous ones. The first phase of constitutional cycle (deconstitutionalization) usually implies the rejection of current constitutional rules and shows a conflict between legal regulation (the old one) and social efficiency (based on a new sense of justice and regulatory legitimacy). The second stage (constitutionalization) reflects attempts to reconcile these two factors by adopting a new constitution (fundamental legal norms are viewed as optimal) by society (the constituent power).
Finally, the third phase (reconstitutionalization) usually implies adjusting exaggerated constitutional expectations and leveling constitutional norms with traditional institutions in order to improve their efficiency. This phase may bring an end to the cycle, i.e. restore the pre-crisis situation. As a rule, reconstitutionalization is characterized by three trends. The first trend consists in limiting political space by curbing the activities of political parties. This is achieved through constitutional and other legal methods maintaining the supremacy of one progovernment party over other parties in the area of public policy; and by adopting the legislation compelling parties to strictly observe the constitution (which also undergoes substantial modification). The second trend consists in revising the separation of powers (both horizontal and vertical) with a view to increasing their centralization: restricting federalism; introducing checks and balances systems at the federal level; building the vertical hierarchy of power; instituting the "constitutional" power based on the overwhelming discretionary authorities of the administration. This can be achieved through separating administrative law from the domain of public law and social control (through the adopted legislation on public order, state licensing, greater discretionary powers of administrative institutions and power structures along with limited independence of the judiciary). The coercive administrative supremacy of public law becomes a rationale for reconstitutionalization and concurrently determines its output. Lastly, the third trend shows the prevalence of a special imperial style presidency with the presidential administration ruling over all governmental bodies. Within such a structure, the separation of powers has purely administrative meaning, i.e. a pro-presidential party becomes dominant, especially if lead by a president.
The characteristic trends of reconstitutionalization, to some extent, stem from society's unpreparedness to introduce liberal democracy and its response to the inefficiency of democratic institutions. These trends may have different political meaning but, on the whole, they imply new interpretation of constitutional principles aimed at reinforcing centralism and reducing social control over the government through delegating extra powers to administrative bodies within the vertical hierarchy of power and, eventually, to the head of state. Comparative analyses show that the constitutional cycle completed during reconstitutionalization does not halt the process of development. Rather, it forms the basis for the next constitutional cycle.
The current Russian constitutional cycle, which began in 1990s, has now entered its final stage. This cycle is remarkable because, like its predecessor, it was affected by the collapse of the state. The cycle embraces three main phases: deconstitutionalization -the crisis of legitimacy of nominal constitutionalism in the Soviet Union (1989)(1990)(1991) and then in Russia (1991Russia ( -1993; constitutionalization -adoption of the new constitution on 12 December 1993; and reconstitutionalization -the third phase that has been developing since 2000. The question remaining: what is the nature of the third phase and can the current constitutional cycle, like other ones, end up reproducing the authoritarian phase in one of its numerous forms? Thus, constitutional crises in transitional societies provide very valuable material for a political theorist who wants to analyze the mechanisms of constitutional changes. The concept of constitutional cycles seems to be promising because it demonstrates a correlation between the main phases of constitutional process during transition: crisis (loss of constitutional legitimacy), upset balance (political discourse on constitutional issues), and stability regained at a new level (consensus on the next constitution). The problem of constitutional dysfunction is manifest in a conflict between the notions of legitimacy and legality and in the way they are revealed in the process of constitutional modernization. The mechanisms of constitutional transformations can be understood through analyzing different types of constitutional crises, their developmental stages and the role of the constitution as a factor of social changes. Hence, the theory of constitutional cycles enables one to see the correlation between the broken political and legal tradition (in the form of constitutional crisis), consolidation of a new constitutional regime (solution to the crisis) and restored continuity.
In analyzing the cyclical evolution of Russian constitutionalism, we are going to address the following issues: the mechanisms of cycles -constituent power and constitutional power; decentralization and centralization of political system -the evolving concept of federalism; transition from the separation of powers to their unification -the form of government and the type of political regime in Russia; the conflict of modernization and retraditionalizationstrategies for implementing constitutional reforms in today's Russia; and lastly, the third constitutional cycle and possibilities for its adjustment.

Real, nominal and sham constitutionalism
The theoretical approach has allowed us to interpret Russian constitutionalism as an integral historical phenomenon of modern and recent times. Russian constitutionalism is specifically characterized by contradictions inherent in modernization process. These are contradictions between the law and the necessity of rapid social changes; between the newly established democratic institutions and the consolidation of power needed for reform regulation; and lastly, between the classical West European models of constitutional development and the indigenous forms of political development. In the public consciousness of society or a part thereof, constitutional institutions are usually associated with the positive participation of citizens in public administration. The regimes, which cannot and thus do not want implement adequate legal norms or institutions of government, tend to use constitutionalist terminology in a demagogic way. Constitutional modernization in transitional societies may begin or continue with this terminology, which acquires a new meaning therein [Konstitucionnye proekty v

Rossii 2010]
To be clearer in interpretation of emerging gaps between the notion and reality, it was important to find a terminology for transitional process (though in reality, they sometimes imperceptibly evolve turn into one another). Hence, we describe nominal constitutionalism and real constitutionalism as two polar opposites divided by a changing space of conflicting interests and development. Like Max Weber, we call the space "sham constitutionalism". Weber, together with Russian liberals, studied the instability of sham constitutionalism using German constitutional law and drawing on the Russian specific experience of the early twentieth century.
In particular, German and Russian liberals meticulously studied prospects for implementing the right of universal suffrage in the societies that are not ready for liberal thinking [Kokoschkin 2010]. In the late nineteenth and early twentieth centuries, Russian liberal philosophers focused on the issues linked to transition from the authoritarian regime to a constitutional system [Gessen 2010].
For interpreting the political system, it is important to determine its attitude toward a transitional political system, as well toward such interrelated phenomena as sham constitutionalism and nominal constitutionalism. In our systemic analysis of the transitional political system, these notions have the following meaning.
Nominal constitutionalism can be defined as a system where the constitutional norm is not effective at all. The classical principles of liberal constitutionalism which are governing human rights and power relations (the separation of powers) are not entrenched in the political system. The constitution legalizes an unlimited power, a dictatorship, which is per se unconstitutional. Therefore, this system is constitutional in name alone. And it does not have constitutional norms for power restriction in reality. Nominal constitutionalism embodies new principles of legitimacy (the sovereignty of people or classes) and establishes an authoritarian government (the dictatorship of a party in power).
Sham constitutionalism might be defined as the system where political decision making is withdrawn from the sphere of constitutional control. This is accomplished through: а) conferring vast legal powers on the head of state; в) maintaining flaws or lacunas in the constitution; and consequently, с) adjusting these flaws or omissions depending on the actual balance of social and political forces. As an alternative option, there may be established a new form of authoritarianism [Medushevsky: 2006].

Mechanisms and parameters of constitutional dysfunctions
The general dynamics of constitutional deviations could be underline according to the following lines of interpretation: 1)the quantitative growth of deviations in temporal perspective cover mostly the period of the past decade; 2)the general trend of their expansiongoes from more broad constitutional regulations to the concrete ones -elements (sub-principles) of each investigated principle (as a result the general legal formula is quipping stable, but the structure and sense changes substantially); 3)deviation rate grows progressively by move from more formalized modes of practices (legislative and judicial) to the less formalized onesinstitutional and informal; 4) the most visible qualitative growth of deviations is fixed in the area of transition from the federal level of legislation to the legal regulation and notably to enforcement of laws at the regional and local level (the phenomenon of monopoly of different branches of power in the hands of regional elites).
In the process of investigation has been shown some important legal disproportions which are mostly sensible to constitutional deviations in terms of the using of informal practices.

Retraditionalization in Russian constitutional development
Theoretically, a conflict between the new legal regulation and the existing social reality can be settled in favor of either the former via constitutionalization or the latter via reconstitutionalization. The quest for the rationality of law replaces the search for its efficiency.
Therefore, constitutional revolutions are followed by constitutional counter-revolutions or reconstitutionalization which re-enforce the legal norms or practices preceding the newly adopted constitution. Thus, due to the difficulties of constitutionalism, an unprepared society (where the constitution lacks grass-root support, only elite groups are involved in politics, constitutional norms are not protected by courts, and adequate administrative reform is needed) might encounter constitutional retraditionalization occurring directly or indirectly, in one of the ways described below.
The 1993 Constitution became a turning point in the movement towards civil society and law-based state, which marked the beginning of transition from nominal constitutionalism to real one. A comparative study into the adoption of the constitution, specifics of its contents and subsequent developments allows us to make a number of general observations. The historical role and, in a way, teleology of the Russian constitution should be recognized as its

Form of government, separation of powers and political regime in transitional society
Contemporary scholars argue about the form of government existing in Russia.
According to one opinion, Russia is a mixed republic whose nature is referred to as semipresidential, semi-parliamentary and even "non-preparliamentary" (this is rather a journalistic term expressing a strive to an extended parliamentarism) [Scheinis V. 2014]. The most immediate analogue of this system could be seen in the Fifth Republic in France. It was termed a mixed form of government, though the very formula is quite ambivalent as it covers political regimes featuring different trends (from the trends close to parliamentary to those close to "republican monarchy") [Duverger M. 1974]. The other point of view treats the Russian form of government as presidential republic. The nearest analogue is the US presidential model (though sometimes the concept of "presidential republic" is interpreted in broader terms and includes also the French model, which may function as presidential republic). The main arguments of this standpoint stress the legal and actual precedence of presidential power in Russia. It is precisely where the proponents of the mixed form of government in Russia see the proofs of its presence (as components of constitutional accountability of government), its opponents find confirmation of their case (in the form of weakness of these components). And, finally, the third opinion defines the Russian model as a super-presidential republic. It is specific in that, given some (sooner formal) attributes of presidential system, it lacks a real separation of powers for the president is vested with huge executive and legislative powers. The concept of super-presidential system was developed as applied to regimes in Latin America. The numerous dictatorship regimes (Argentina, Brazil, Venezuela, Uruguay, Chile) have elevated this power to an absolute level. Some of its essential components were retained, however, upon transition to democracy. It is important to note, in comparative perspective, that the real presidential powers are far from always arising directly from constitutional provisions. In reviewing the Mexican Constitution of the term "presidencialismo" so as to concurrently define the presidential system of government and stress the exceptional concentration of powers (constitutional and all others) in the hands of the Mexican President [Presidentialism and Democracy in Latin America 1999].
Indeed, Russian political system is designed so as the RF president is above the system of separation of powers, acts as an umpire between branches of power and a guarantor of constitution. This construction bears a strong resemblance to the system of constitutional monarchy pursuant to the fundamental law of the Russian empire of 1906; the empire was subject to controversy whether the system was really a restriction of monarchical power. In due time, we suggested to interpret the system as "sham constitutionalism" meaning a specific etymological sense of this concept in the course of transition from absolutism to law-based state in the form of constitutional monarchy. [Reformen im Russland 1996]. This is, no doubt, a transitional model capable of evolving in different directions and expressing an unstable balance between democracy and authoritarianism. Some authors refer to it as a "hybrid form of government", "dualistic regime", "proto-democracy", "post-totalitarian democracy", "delegated democracy", "presidential democracy", "controlled democracy", etc. This regime can be defined as "authoritarian democracy" were this notion not a sort of contradicio in adjecto. The idea of all definitions comes to expressing a subtle gist made up of a unique combination of democracy and authoritarianism, whose contradictory relations are each time dialectically reproduced at a new convolution creating a similar synthesis. On this basis, there can emerge and exist various forms of restricted democracy and authoritarianism.
Russia's president is above the system of separation of powers, performing the functions of guarantor of constitution and umpire (in the broadest sense of the Gaullist term "arbitration").
Quite applicable to the Russian system, therefore, are the notions expressing different ways of power concentration in democratic states, which in different times were suggested for defining the head of state: Weimar Republic -"ersatzkaiser" (Hugo Preis) , Gaullist France -"republican monarch" (Michel Debre), the United Kingdom -"elected dictator" (Lord Hailsham). All of these are combined in a highly ready-witted notion of "President of All Russia" designating a synthesis of democratic and monarchical powers. The RF president power makes one to recall the constitutions of East European monarchical states at the turn of the nineteenth-twentieth centuries with their sham constitutionalism [Diskurse der Personalität 2008]. Yet, in relation to the acts of Russia's president (who is formally head of state but not of executive power) no institute of countersign is envisaged, which distinguishes him from constitutional monarch and sooner brings closer to "republican monarch". As a matter of fact, the institute of checks and balances is present in American-type presidential republics where, given a rigid separation of powers, president is head of executive power, but is missing from French-type mixed republics, where president is head of state [Mény 1996]. Hence, the following conclusion is valid: the power of Russia's president (apart from the virtually unfeasible impeachment procedure) is really limited (and in this it differs from monarchical one) only by the term of office and nonhereditary nature of power devolution.
What is more, normative definitions fail to explain the specifics of the regime, which are associated with extra-constitutional and extra-legal clouts and have always been strong. It is impossible to understand the nature of Russian presidential regime of post-Soviet type if no account is taken of the meta-constitutional power of president including a set of symbolic and real powers not directly fixed in the constitution [Konstitutsionnyi sud kak garant razdelenia vlastei. 2004]. In describing political and legal regime in Russia it would, therefore, be reasonable to use political science rather than formal legal terms. Therefore, scientific literature makes mention of "hybrid" form of government, "latent monarchy", dualistic form of government (these notions have also been borrowed from the history of European constitutionalism of monarchical period), and some authors give up the task of typology, defining the Russian model as "atypical" form of government [Mommsen M., Nussberger A. 2007] or defected democracy [Yasin 2012].
In comparative perspective, modern Russian political regime has acquired a number of key attributes of democratic Caesarism. If the plebiscite democracy regime is characterized by legitimation through plebiscites (referendums), then democratic Caesarism no longer needs it. It maneuvers between the forces of previous system, craving for revenge, and the forces pushing for modernization. Its characteristic manifestations come to be a dual legitimacy (democratic and authoritarian-paternalistic), limited parliamentarism, distrust of political parties, centralism, super-party technical government, bureaucratization of state machinery and the concept of strong presidential power [Ostrogorskii M. 2010]. Being an objective consequence of complex processes in transitional period, any centrist political regime can rely on different social forces, hence, has a choice of political trajectory. Democratic Caesarism is a qualitatively new phase in regime consolidation, which is being built in the conditions of limited and controlled democracy [Sartori G. 2002]. In Russia, this situation emerged in the wake of elimination of the dualism of parliament and president, creation of a new party in power, neutralization of public organizations and regional opposition, the beginning of agrarian reform. At present, these tendencies are rationalized, institutionalized and, so to speak, symbolically manifest themselves in the concept of imperial presidency. If there is need for a uniform formula, illustrating the evolution of Russian constitutionalism over the past ten years, then it is as follows: from plebiscite democracy to democratic Caesarism. The first trend is toward interpreting the principle of fairness in terms of its distributive meaning.
In this sense, it modernizes the concept of equality as defined by Article 19(1) of the Russian Constitution: "All are equal before the law and the court". However, this gives major significance to different meanings acquired by the references to the equality concept. First, in a wide range of matters the Court decisions define fairness as a formal equality before the law and unfairness -as inequality which may be caused by various factors ranging from deficiencies in the law itself, a self-contradictory and uncertain nature of its provisions to their arbitrary interpretation and so on. Accordingly, unfairness is a result of departure from the principle of formal equality. Second, in treating fairness as equality before the law, the Court often goes beyond the formal interpretation of equality to address issues from the perspective of actual material inequalities between the parties to the dispute. In this sense, fairness not only represents the formal equality of all before the law but also acts as its actual safeguard. Third, fairness can be understood as the opposite of formal equality, that is a conscious departure from the principle of formal equality for the sake of factual circumstances; yet such departure is not recognized as a principle by the Court [Medushevsky 2002[Medushevsky , 2004.
Another trend in understanding the principle of fairness involves its legalist interpretation, i.e. the interpretation which is based on the law but is modified along the lines of proportionality. This approach is mostly applied by the Court when deciding on the matters of human rights and freedoms restrictions and their boundaries within the meaning of Article 55 (3) of the Constitution. Any legislation that goes against the established norms and principles will be

Targets of constitutional modernization
For a comparative study, it is important to assert that there are two models of transitional processes: one is based on the contract (consensus model) and the other on the disruption of consensus (essentially, the model of delegated constitution). While the former may imply a better expression of the will of the people (via political parties), the latter may boil down to a situation where a victorious side (a party, a state or even a foreign power) imposes its will on the defeated. Bruce Ackerman put it, didn't missed its "constitutional moment" (the culmination of national and social upsurge calling for adoption of a constitution corresponding to the true aspirations of society and to the level of national development). The Russian constitution resulting from the rupture of legal continuity, a genuine constitutional revolution, in this sense did not mean implementation of the contractual model of transition from authoritarianism to democracy but implied the delegated method of transition (virtually it was given from above by the victorious side). The conflict between the new legitimacy and the old legality was resolved in favor of the former. Hence, there emerged a legitimacy deficit and the necessity of long subsequent legitimation for the constitution. The main contradiction of this transitional process -adoption of the democratic constitution by non-democratic means -is not unique to Russia in recent times.
Nevertheless, Russia's transitional process has most clearly revealed the fundamental inconsistency of modernization -between goals (declaration of a law-based state) and means (strengthening of authoritarianism in the form of plebiscite democracy).
Currently, the political regime of the Russian Federation displays distinct features of transitional regimes. This regime took shape in an underdeveloped civil society whose shaky foundations were destroyed by the subsequent regime at the outset of the twentieth century.
[Grajdanskoe obschestvo 2009]. Democratic transformations, which had not been properly prepared in advance, led to an acute crisis of legitimacy and split the ruling elite at the end of the twentieth century. The process of legitimation, implemented initially on the basis of former not as a result of constitutional reform but as an outcome of constitutional revolution (according to its formal legal assessment) in which course the victorious side imposed its will on the defeated. Therefore, the Russian constitution is characterized by a number of significant features Secondly, it was proposed to make radical reinterpretation of the existing treatment of the federalism principle which actually presumes the predominance of the centralist tendency.
For thatit is prescribed to revise norms of the federal legislation which in reality substituted the Federal Constitution, constitutions of Republics and federation subject's statutes in definition of their legal status at the area of the division of the common and competitive competences. The important target is to avoid the overburden bureaucratization and administrative centralization in the subjects of the Federation at the areas of regional budget prerogatives, institutes and their functions, to realize on the regional level the principles of political pluralism, multiparty system and direct democracy, to strengthen the authority of the Federation Council as a chamber of regions of the Russian parliament. The abortion of disproportions in the system of checks and balances on the regional level has the acute importance in the prospect of effective constitutional control over the informal practices in the work of organs of the executive power. Actually the power of the regional leaders is so high that makes possible (grace to uneven character of the civil society and the insufficient character of control over administration in regional medias) to put under their dominance local parliaments and courts, though the last ones (with the exception of peace justices and local constitutional courts) stay formally under federal control.
Thirdlythe important target of constitutional modernization is to de-bureaucratize the judicial system and exclude legal norms and institutional shortages which created the special judicial bureaucracy (nominated court chairmen) monopolized in fact the decision-making process in courts and justices professional community. For strengthening the constitutional fundament of independent justice it was proposed to modify the status of courts chairmen and to enforce the independence of courts via organs of justices self-regulation, the strengthening of the procedural control over the quality of judicial decisions, institutional and functional judicial control over inquisition process in criminal jurisprudence and the enforcement of extra territorial organization of the court districts (which should not be combined with the existing administrative districts).
In a framework of the third group of recommendations it was proposed to undertake the legal reforms capable to stimulate the real multiparty competition and substantive guarantees of political rights and freedoms of the citizens. The target of these reforms should be the fullfledged implementation of the constitutional principlesprotection of the freedom of speech and the abolition of informal censorship, implementation of norms on the right of meetings and demonstrations. The actual character has the proper implementation of electoral legislation and independent public control over democratic electoral practices, the protection of norms on equality of public unions in the area of law and constitutional guarantees for the activity of political opposition from their unconstitutional deformations. The important role could be played by the independent public TV-channel.
To summarize, it was recommended to destroy the artificial barriers between society and the state, create a system of inter-connections between citizens and political power by using constitutional institutes and procedures in their proper sense and by protecting and developing new forms of democratic civil activities. That means the abolition of the whole system of deformations in the implementation of fundamental constitutional principles. These deformations appeared as a result of the public law policy which was conducted in the last ten years in order to built a system of limited pluralism and authoritarian modernization. The prolongation of these tendencies means the blockade of main constitutional principles in terms of political stagnation and bureaucratization of the system.
The essence of presented recommendations resumes in the proposal to change the policy of law in the area of the constitutional principles implementation towards the fulfillment of the real political competition, separation of powers and independent judicial control, to find clear and reasonable answer to this challenge.