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

party, too.
27
 Such a diplomatic attitude of the courts is associated with judicial activ-
ism in the most trivial sense of the term. In situations of complete uncertainty about 
who will be the winner in the power game, judicial empowerment is unprecedent-
edly high. Considering that post-Soviet courts often have a constitutionally prescribed 
obligation to decide on cases determining the outcome of power games (electoral or 
jurisdictional disputes, impeachments, etc.), one should say that situations of high 
instability are by default associated with judicial activism and judicialization.
28
All this said, the reader must be reminded that situations of political instability and 
political competition, which, as argued, activate and empower courts, are not com-
mon to formerly Soviet political environments. The most concentrated regimes in the 
region, including the Central Asian autocracies, as well as Azerbaijan, Belarus, and to 
a large extent also Russia, have never witnessed any reasonable uncertainty about the 
outcome of power politics since the mid-1990s, albeit Kyrgyzstan started to deviate 
from this pattern in 2005. In the group of states with relatively freer regimes—Ukraine, 
Moldova, Georgia, Armenia, and post-2005 Kyrgyzstan—the competition for political 
power is no longer implausible, as all of these states have witnessed a form of pluralis-
tic politics since the beginning of the previous decade. Here, in this group of countries, 
27
Mazmanyan, 
supra
note 27.
28
This said, instability and uncertainty about political developments are necessary, but not sufficient pre-
condition for higher courts political activism. For one, activism has more chances to thrive in a constitu-
tional, rather than a general court. The evidence, for example, shows that wherever electoral disputes are 
assigned to general courts (e.g., Russia), such disputes are decided in a predominantly legalistic fashion, 
with the letter of law prevailing over its spirit (
see
Armen Mazmanyan, 
Failing Constitutionalism: From 
Political Legalism to Defective Empowerment
, 1(2) 
G
lobal
c
onStItutIonalISM
313
(2012)). Meanwhile, in 
some countries (e.g., Georgia, Moldova), courts are rarely called to resolve political conflicts even if such 
conflicts can be referred to them by the law. While this may well be due to the fact that political tensions 
there have not often been a result of strongly contested, unconstitutional actions, such as rigged elections 
(post-2003 Georgia, as well as Moldova have witnessed no significant cases of contested elections), one 
can also assume that judicial review of politically sensitive conflicts has not become a prevalent pattern 
where a relatively strong tradition has developed of conflict resolution through dialogue and political 
compromise between antagonist parties.
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210
I•CON
13 (2015), 200–218
the emergence of sound political contests and hence of uncertainty about the win-
ners in those contests, has varied from country to country, with Ukraine, Moldova, 
and Kyrgyzstan witnessing some long-lasting periods of political turbulence and often 
splits in the governing elites. Yet, meaningful and stable competition between politi-
cal adversaries is rather limited even in this group of countries as consolidation and 
illegitimate reproduction of power were never uprooted from the political cultures. As 
the emerging power elites do not, as a rule, abandon the practice of keeping their grip 
on the judiciary, judicial empowerment emerges as a temporary, often one-off act, in 
exceptional situations when the old ruling elite has disintegrated while the new one is 
not consolidated enough to assure effective control over the judiciary.
29
The cases under this rubric, then, are very few. Yet they are among the most illus-
trative and famous court cases in the region. In 2003, the Constitutional Court of
Armenia, faced with reviewing the results of presidential elections, pronounced a 
judgment which has probably become an exemplar of judicial activism by a post-
Soviet court. Earlier that year, the second round of presidential election between the 
incumbent president and the opposition nominee resulted in the former getting the 
support of 67 percent of voters, according to the official results. The opponent alleged 
widespread violations during the elections. At a time when there was a fair degree 
of certainty that the incumbent would preserve his power and, at the same time, in 
the midst of a spontaneous, unpredictable protest bringing thousands to the streets to 
complain about the disputed elections, the Court offered an unprecedented extralegal 
and clearly politicized solution to the political crisis: to hold a