ИСТИНА

Constitutional courts play a significant role in modern democracies, especially in human rights protection field. Their judgments can influence not only an applicant’s and an opposite party’s rights, but a legal order as a whole. The key component of constitutional courts’ judgments is legal reasoning, and taking into account the role the judgments play the reasoning must be persuasive. Court’s task is to provide such a reasoning, which will be accepted by the audience, meaning parties of a concrete constitutional process, judgments’ executors and all the society. Legal reasoning is more persuasive, when all the steps made by a constitutional court are visible, therefore it is worth structuring the argumentation. Structuring the reasoning helps to minimize risk of so-called “cherry-picking”, that is selecting arguments for the beforehand defined position. There are different points of view among researchers on the issue of permissibility of “cherry-picking”. Some of authors regard as admissible the scheme of reasoning, which presupposes choosing arguments for intuitively or consciously defined in advance decision. Nevertheless, arguments picking contains risk of bias. It becomes difficult for judges to stay open for new arguments, presented to them, if they keep in mind an exact decision. Structuring of reasoning is aimed at considering all the relevant factors and arguments. One of the most widespread structural argumentative models in constitutional justice is proportionality test, which is built on the idea of assessment of admissibility of human rights restriction. Russian Constitutional Court, for instance, often applies proportionality principle. However, it does not apply the test itself as it uses this argumentative model only in a reduced form. It leads in some cases to the lack of persuasiveness of a judgment, because it is hard to follow the Court’s argumentative line. The aim of the analysis is to look for the connection between structure of a reasoning and its content and a final decision. For example, if a court provides according to the structure of reasoning arguments of both parties of a process, it becomes difficult for a court to ignore them. It also helps not to miss relevant information. The presentation covers the “cherry-picking” problem, application of proportionality test issue and some other matters of structuring legal reasoning in the context of human rights protection in constitutional courts