2015, Vol. 13 No. 1, 200-218 doi: 10. 1093/icon/mov003

2.1. Formal empowerment 
As elsewhere in the high days of transition from the authoritarian rule, not only 
did constitution-makers create separate bodies to implement constitutional review 
over majority-backed decisions, but they also generously empowered the courts to 
become key players in even the most partisan politics. In Russia, a constitutional 
court was created in 1991, and on paper, it became the most powerful tribunal of
its kind (the First Russian Court). Its powers included both concrete and abstract 
review of international agreements, laws, and presidential and governmental acts, 
jurisdictional disputes, impeachment of the highest state officials, and constitu-
tional review of suspension of political parties. The Court was famously given the 
authority to review constitutional complaints—a practice known at that time only 
in Germany.
9
The Court also enjoyed the right to legislative initiative if it identified 
gaps in the laws. Other unusual powers granted to the Court included the right to 
provide binding interpretations of the Constitution and the right to launch proceed-
ings on its own initiative. To sum up, as a Russian constitutional judge remarked, 
the First Russian Court was assigned all possible responsibilities from every existing 
model in a way that “the law overbuilt the institution” and that the court “could not 
bear the weight of its own construction.”
10
In Ukraine, a constitutional court law was adopted as early as 1992, which invested 
a tribunal with “far reaching powers.”
11
 Although this tribunal never came into effect, 
and the formation of the constitutional court (with considerably fewer powers) was 
delayed until the adoption of the Constitution in 1996—a fact that speaks for itself. 
Ultimately, all formerly Soviet countries created constitutional courts, except for 
Turkmenistan, which, in general, quite significantly departed from standard politi-
cal and institutional trajectories typical of the whole region. While the institutional 
design of these courts carried major adjustments in the years to come, and nowadays 
none of the post-Soviet courts are institutionally as strong as the first courts were in 
the beginning of 1990s, constitutional tribunals today are still significantly empow-
ered politically.
For a better illustration of  this proposition, 
Table 1
below outlines the main func-
tions of each constitutional court in the region. Abstract review is omitted, as this basic 
function is implemented in each jurisdiction; albeit in Kazakhstan it is implemented 
8
For one, 
see
Richard Sakwa, 
Constitutionalism and Accountability in Contemporary Russia: The Problem of
Displaced Sovereignty
, 
in
R
uSSIa
and
ItS
c
onStItutIon
: P
RoMISe
and
P
olItIcal
R
ealIty
1 (Gordon Smith & Robert 
Sharlet eds., 2007).
9
Klaus von Beyme, 
The Russian Constitutional Court in an Uneasy Triangle Between the President, Parliament 
and Regions
, in 
c
onStItutIonal
J
uStIce
, e
aSt
and
w
eSt
: d
eMocRatIc
l
eGItIMacy
and
c
onStItutIonal
c
ouRtS
In
P
oSt
-c
oMMunISt
e
uRoPe
In
a
c
oMPaRatIve
P
eRSPectIve
309, 314 (Wojciech Sadurski ed., 2002).
10
Quoted in
h
eRMan
S
chwaRtz
, t
he
S
tRuGGle
foR
c
onStItutIonal
J
uStIce
In
P
oSt
-c
oMMunISt
e
uRoPe
116 (2000).
11
Kataryna Wolczuk, 
The Constitutional Court of Ukraine: The Politics of Survival
, 
in
c
onStItutIonal
J
uStIce
, 
supra
note 9, 327, at 329.
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204
I•CON
13 (2015), 200–218
only prior to the promulgation of laws by the president, in a French-style 
ex ante
fashion.
12
To a student of comparative judicial review, as well as to those with a basic knowl-
edge of the US-centered constitutional theory, 
Table 1
should confirm the fact of judi-
ciaries’ political empowerment. Besides the function of abstract judicial review, which 
is the key feature of constitutional courts of continental type, post-Soviet courts pos-
sess functions that are not only “marginal” in light of the main designation of such 
courts, but that are fundamentally political in many respects.
13
 For example, constitu-
tional courts in Azerbaijan, Georgia, Russia, and Tajikistan can review jurisdictional 
disputes between the branches of the government, thus involving courts in politi-
cal conflicts. Impeachments are part of the responsibilities of constitutional courts 
in Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russia, and 
Ukraine. Constitutional courts in Armenia, Georgia, and Moldova can decide on con-
stitutionality of political parties. Electoral disputes and disputes on the results of refer-
enda are part of the responsibilities of constitutional courts in Armenia (presidential 
and parliamentary elections and referenda), Azerbaijan (presidential and parliamen-
tary elections), Georgia (elections and referenda), Kazakhstan (presidential and par-
liamentary elections and referenda), Kyrgyzstan (presidential elections), and Moldova 
(presidential and parliamentary elections and referenda); in all other countries of the 
region, major electoral disputes are adjudicated by general high courts.
If formal empowerment is taken as an indicator of judicialization, to some, these 
functions would make the respective jurisdictions home to judicialization by default.
14
Moreover, some of the typical functions of post-Soviet courts would probably qualify 
in the US as political by definition, according to the existing judge-made doctrine.
15
Finally, judicialization of politics can be said to be institutionally prescribed in these 
jurisdictions simply due to the fact that these constitutional systems lack any reason-
able notion of judicial restraint, not to mention a US-style political questions doctrine. 
By way of example, the Russian Constitutional Court could not, under any condi-
tion, excuse itself from reviewing the constitutionality of the military operation in 
Chechnya, given that a valid request had been filed. Similarly, the Constitutional Court 
of Ukraine had no valid ground to abstain from making a decision on the dissolution 
of the Parliament by the President in 2006, and therefore its conscious abstention 
from making a decision in that critical political moment plainly constituted a breach 
of its legal obligation and seriously damaged its reputation.
16
12
Table 1
presents the institutional settings of the Kyrgyz Constitutional Court as until 2010. In 2010 the 
Court was abolished by the interim government. Although the function of constitutional review was 
reintroduced in a separate chamber of the Supreme Court, the new institutional design of judicial review 
is by now under construction.
13
w
oJcIech
S
aduRSkI
, R
IGhtS
b
efoRe
c
ouRtS
: a S
tudy
of
c
onStItutIonal
c
ouRtS
In
P
oStcoMMunISt
S
tateS
of
c
entRal
and
e
aSteRn
e
uRoPe
13 (2005).
14
J
eSSe
h. c
hoPeR
, J
udIcIal
R
evIew
and
the
n
atIonal
P
olItIcal
P
RoceSS
: a f
unctIonal
R
econSIdeRatIon
of
the
R
ole
of
the
S
uPReMe
c
ouRt
(1980); Hirschl, 
supra
note 1.
15
Nixon v. United States 506 U.S. 224 (1993) and Baker v. Carr 369 U.S. 186 (1962).
16
See
Armen Mazmanyan, 
Should Constitutional Courts Adjudicate Political Disputes? The Perspectives of
Democratization in Soviet Successor States
, 34(1) 
R
ev
. c
entRal
& e. e
uR
. l.
71 (2009).
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Judicialization of politics: The post-Soviet way