Sergei Golubok: “Everyone is obsessed with the idea of unanimity.” Who is hindered by the ‘dissenting opinions’ of judges?

28 October 2020

Human rights lawyer Sergei Golubok from St. Petersburg talks to Tatiana Voltskaya

Source: Moscow Helsinki Group [original source: Север.Реалии]

The law on the Constitutional Court has changed in Russia. The State Duma has  adopted, in its third reading, a bill under which the number of judges is reduced from 19 to 11. They will not be allowed to openly publish their “dissenting opinion”, nor  even publicly refer to it.  There are changes to the procedure for appointing the chair of the Constitutional Court and their deputy.  There are also changes in the procedure for the dismissal of judges as they can now be dismissed on the basis of a submission by the President to the Federation Council. The lawyer Sergei Golubok, a Moscow Helsinki Group Prize laureate, who has repeatedly taken cases to the Constitutional Court, talks about what these amendments to the law relating to the Constitutional Court mean for society.

The purpose of the Constitutional Court is to ensure the supremacy of the Constitution by checking the extent to which the Constitution is in accordance with the other laws of the country. Constitutional courts do not exist in many countries. There are countries where there is no written Constitution presented in a single document, for example, in the UK.  In other countries the functions of such judgments are performed by ordinary courts, for example, in the United States. 

The concept of creating an independent Constitutional Court is a concept of the twentieth century; the first such court was created in Austria. At the same time, there are two general options: the first option is to have a Constitutional Court which checks laws and other regulations in accordance with the Constitution. This is the option that is used in Russia. The second option is to check the constitutionality of court decisions. This is the  model used in Germany. In both cases, the aim is to ensure the supremacy of the Constitution, maintaining its priority in relation to all other legal acts of the country.

Do you think for Russia the creation of the Constitutional Court was important?

It was an important idea, implemented at the end of the Soviet Union when the all but forgotten Committee for Constitutional Oversight was created. It  made recommendations, but even then it concentrated upon ensuring the supremacy of the Constitution, because in the Soviet Union until the end of the 1980s the Constitution was a purely cosmetic document. Nobody considered  that it could be applied or used directly. 

And so, ensuring the supremacy of the Constitution through  the courts is a big step towards releasing the Constitution from dreamland and making it a real functioning institution. And in the Russian Federation, the Constitutional Court was established in 1991, even before the modern Constitution was adopted. Of course, this was a big step forward: the appearance of the Constitution as a valid document, and not as a cosmetic deception is very important.

The Constitutional Court, unlike the rest of the courts, does not consider private disputes, it considers compliance with the laws of the Constitution.

A citizen can apply to the Constitutional Court if they consider the law as applied in his case is at variance with the Constitution – but this is not the right way to solve the issue. It will still be decided by the courts of general jurisdiction, where the case can return after the Constitutional Court. Unlike under  the German model, where the constitutionality of judicial decisions is involved and where decisions deemed unconstitutional may  be overturned, in our country, decisions deemed unconstitutional are overturned not by the Constitutional Court, but by the courts that have made this decision or by the Supreme Court. That is, the Russian Constitutional Court cannot resolve a specific dispute. Its task is to determine how much the laws, by which these cases are resolved, are in accordance with the Constitution.

But of course we remember times when, after the Constitutional Court’s ruling, new avenues opened up for claimants.

This is if the ruling found the law did not comply with the Constitution. There are many examples: I can recall the case of Noe Mskhiladze, which I handled together with Olga Tseitlina. At that time, the provision in the legal code on administrative violations that forbids overturning rulings to deport a stateless person or a foreign citizen when the ruling cannot be implemented was considered unconstitutional. A situation came up in which an ordinary court ruled that a foreigner or a stateless person should be deported, but this was impossible because there was no country that would accept them. And so, the legal provision on administrative violations, which did not provide for the cancellation of such a ruling, was found not to comply with the Constitution. This led not just to a review of Mskhiladze’s case and his eventual release from the detention centre for foreign nationals, but also to the cases of hundreds of aliens or stateless persons in the same situation being reviewed.

Presumably these were people born in the Soviet Union who had no other native country?

Yes, that’s usually how it was. There are many other similar examples, but all of them are just a side effect, because the main task of the Constitutional Court is not to help Noe Mskhiladze, but to check whether the laws applied in a citizen’s case comply with the Constitution. That is why it was initially assumed that it wouldn’t so much be individual citizens who would turn to the constitutional court, but the courts themselves, if they came to the conclusion that the standards they were about to apply in a case were unconstitutional. Requests can also be made by the authorities in the regions of the Federation, the President, and the government – this is the so-called abstract oversight of legislation. A group of up to one fifth of deputies in the State Duma deputies can also appeal to the Court – if they weren’t able to stop a law being adopted, they can get it checked for compliance with the Constitution. This guarantees the rights of minorities.

To give an example from the past – I remember an appeal by a group of state Duma deputies to review the law on rallies in 2013. This group was from A Just Russia and the Communist party. I remember deputy Yelena Mizulina’s speech about how the Constitution was incompatible with a number of provisions of the law on rallies. She is a very bright, competent lawyer – so there’ll be a special place in hell for her somewhere near Vyshinsky, who was also quite a competent lawyer. Mizulina’s speech was very colourful, and along with the deputies’ appeal, a complaint was considered from the now deceased Eduard Limonov, aka Savenko, who had been fined for carrying out the Strategy-31 protests and complained about the provisions under the same law. The Constitutional Court’s ruling at that time is still important: the applicants were rejected on most points, but several provisions of the federal law on meetings, rallies, demonstrations, marches and pickets were then declared unconstitutional by the Constitutional Court. But these provisions, by the way, have not been removed from the law yet – or rather, they have not been rewritten yet. In other words, this resolution has not yet been implemented. 

For example, there is still a stipulation on outdoor spaces for public debates which does not require them to be created in each of a region’s administrative divisions. This allows the St. Petersburg authorities to still not create these spaces in each district of the city. But these are all cosmetic provisions, and the main points of the law that actually abolished the possibility of holding rallies in Russia if the authorities do not like them are preserved in the law.

The decision issued in the complaint brought by Shtukaturov was a very good one; it was important. The case was handled by our lawyer in St Petersburg, Dmitry Bartenev. In that instance, the Constitutional Court actually implemented the ruling of the European Court of Human Rights in its decision. The case related to the provisions of the Code of Civil Procedure, which, at that time, allowed for a person suffering from a mental illness to be deprived of their legal capacity in their absence. Now, the law operates under the general rule that a person must be present in court when it is being decided whether they should be deprived of their legal capacity.

It is an important point, both psychologically and symbolically, and the decision of the Constitutional Court led to a review of the applicant’s own case. Nevertheless, the procedure is slow and occurs after the fact: for a citizen to be able to appeal to the Constitutional Court, they already need to have been deprived of their rights. Not to mention the fact that 99.5% of citizens’ appeals are declared inadmissible and are not considered on their merits, so the Constitutional Court has never been a means of legal address for citizens. The examples of Shtukaturov and Mskhiladze are rare exceptions.

Like activist Ildar Dadin’s case?

Yes, that was also a rare case that I think had more to do with the public outcry, so the Constitutional Court simply became a tool for solving a problem. But in Dadin’s case, the Constitutional Court just showed the failure of the approach that the Court itself came up with back in the 1990s. As I have already said, the task of the Constitutional Court is to show whether a law is in accordance with the Constitution. If it is not, then it is suspended, revoked. I actually think that the foundations for a lot of what is happening with the Constitutional Court today were laid in the 1990s, as were the foundations for a lot of what is happening with our country. I am certainly not contrasting the Yeltsin and Putin eras: what we have today is a logical continuation of the Yeltsin era. And in the legal system, too. Already back in the 1990s the Constitutional Court came to think that an applicant was right and the law was unconstitutional – but if we abolish it now, might there be no law at all?

There have been cases where the President has vetoed a law passed by the Federal Assembly and there really was no legal regulation on many issues. A procedure was invented not actually provided for by the authors of the law on the Constitutional Court or by any laws, namely – the identification of a constitutional and legal meaning. That is, the Constitutional Court said that the law is in accordance with the Constitution, but it was wrongly interpreted and applied by the courts. So, we will now explain to the courts how to interpret and apply it. But the law itself has remained and, since the very beginning, there has been the problem of how to ensure its implementation so that the constitutional and legal meaning identified by the Constitutional Court is observed by ordinary courts for whom the Constitutional Court itself is not a higher authority. For them, the Supreme Court is the higher authority. In Dadin’s case, Article 212.1 of the Criminal Code was reviewed; it was also interpreted by the Constitutional Court. His conviction was overturned and the criminal case against him was dismissed; the decision was pronounced by the Presidium of the Supreme Court. Article 212.1 of the Criminal Code was not applied for a few years because such cases were not initiated, then they began to be instigated again.

Please remind me how the Constitutional Court interpreted this article.

The Constitutional Court said that it is a criminal offence to commit multiple violations at rallies within a period of 6 months if these actions are associated with a violation of public order in a way that poses a real threat to constitutionally protected interests. So not simply that people go to a rally and therefore violate the law on rallies but also, say, they break streetlights – the content should be material, not formal, and there should be consequences. This all sounds rather complicated – one could write an essay on it – but the most important thing is that everyone has forgotten this constitutional and legal meaning, and pretended that it does not exist. That is what Moscow Courts did in the Kotov case, what the investigating authorities did in relation to Galyamina, whose case has now been submitted to court under this article. When Kotov complained to the Constitutional Court, the Constitutional Court responded that it had already said everything in its ruling in the Dadin case.

This demonstrates a long-standing problem that ordinary courts ignore the legal position of the Constitutional Court. In principle, this suits the Constitutional Court. For years, it was an outlet for lawyers – rulings can be beautifully written, as if of importance, and sometimes Latin slips in, and there can be dissenting opinions – but it has no effect on real law enforcement at all. Because there are very few cases in which a law is recognised as inconsistent with the Constitution, resulting in real consequences when the law cannot be applied. And these are all minor incidents. But in important cases such as the Dadin case, the Constitutional Court confines itself to identifying the constitutional and legal meaning; that is, it says the law must be understood as it should be. But there is no control mechanism for this, because these decrees are deliberately written in such an obscure way that nobody understands them and they have no impact on real life. In fact, the Constitutional Court ought to declare laws unconstitutional if they create contradictions and problems. There are several wordings that should be recognised as unconstitutional, but the Constitutional Court is afraid to do this. 

For instance?

The Law on Foreign Agents. It states that foreign funding and political activities serve as the basis for recognising an NGO as a foreign agent. The concept of political activity is entirely unclear and in practice anything can be seen as political activity. In other words, the concept is defined arbitrarily. But the Constitutional Court has not recognised this law as unconstitutional, and its interpretation – as in the Dadin case – influenced nothing. The Constitutional Court’s fear of recognising laws as inconsistent with the Constitution is a longstanding problem. And right from the very start, it was not because it was afraid of the President or anyone else, but because it saw itself as part of the State system. This is the main problem with all Russian courts – they see themselves as part of the State system. The current Constitutional Court sees itself as a legal advisor to the authorities. And the authorities behave very simply – when they like the legal advice, they follow it, and when they don’t like it, they don’t.

And so the Constitutional Court is now undergoing another reform as you said – what does this mean? 

In fact, there were fewer acting judges before than we had reckoned on. There should have been 19 of them, but a few years ago they stopped appointing new judges to replace those leaving, and there were 15 of them. Now there are 13, and at the end of October one more judge will leave. I think that the reduction in the number of judges is simply a reflection of the reduction in the importance of this court. Well, and unwillingness to spend money. Nothing terrible. 

And what is the significance of the fact that it is now possible to elect the chair and deputy chair of the Constitutional Court from outside the Constitutional Court? 

This is also a technical matter. At one time the chair of the Constitutional Court was elected by judges from among their own number, and so Zorkin was elected in 2003. Then they were deprived of this right, and judges and the chair of the Constitutional Court began to be appointed by the Federation Council on the proposal of the president – but the appointee came from among the judges. That is, earlier it was possible to become the chair of the Constitutional Court only if you were a judge of the Constitutional Court, but now the chair can be appointed from outside. Something else is important here – that the judges do not elect their chair, but he is appointed to them.

But at least it’s good that the federal Human Rights Ombudsman and NGOs will be able to apply to the Constitutional Court?

Even now the Human Rights Ombudsman has the right to send complaints to the Constitutional Court, it’s just that the provision for this is not supplied by the law on the Constitutional Court, but the law on the Ombudsman, which has the same legal status. This is done very rarely and, again, on third rank issues that cannot upset or anger the authorities, because the Ombudsman sees themselves in exactly the same way as the Constitutional Court does – an assistant to the executive branch, not someone who defends people from it.

But the biggest stir was caused by the amendment prohibiting the judges of the Constitutional Court to publish their dissenting opinions. Former judge of the Constitutional Court Tamara Morshchakova has already said that the amendments will have an impact not only on the institution of the Constitutional Court, but also on the credibility of justice and the state.

Dissenting opinions are not banned, it’s just forbidden to publish them. By the way, no one remembers this, but we can have dissenting opinions even in ordinary courts. This is extremely rare, but I’ve seen it. So here too – dissenting opinions are not banned, it’s just forbidden to publish them; that is, they are reduced to the level at which they are in ordinary courts. But the discussion around dissenting opinions seems artificial to me. This is how the legal community used to like to discuss decisions of the Constitutional Court – it was something florid, beautifully written, but in no way influencing life, as sometimes happens with scientific articles. That’s the way of dissenting opinions – they don’t actually get anything done. The time is long past when judges of the Constitutional Court could influence anything, even on the level of ideas. I have a collection of the dissenting opinions of judge Anatoly Leonidovich Kononov, who worked from 1991 to 2010, on my shelf. He had a whole line of very strong dissenting opinions on a number of important issues. They influenced something, if only on the level of ideas, but in 2010 he was forced to leave the Constitutional Court. In recent times as well, judges gave dissenting opinions, which pleased some people and not others, but this is like discussing the quality of a manicure on a severed hand. It’s as if Marie Antoinette has had her head cut off, and the crowd is wondering whether her hairdo was damaged. This is an absolutely empty discussion, whether or not the publication of dissenting opinions in the Russian Constitutional Court is necessary. Friends, first you need to ask: is there a Constitution in the country, the supremacy of which is protected by the Constitutional Court? Is there anything left of it at all? On such important matters as the issue of Crimea, our Constitutional Court did not have dissenting opinions.

Perhaps the judges were put under pressure.

This touches upon a very important question – why leave dissenting opinions to those judges who are ready to cave in under pressure? This is the severed head of Marie Antoinette. Regardless of the independence of procedural mechanisms, the main thing that makes a court a court is the independence of the judges. If not, if judges can be pressured to express or not express a dissenting opinion, then what difference does it make, whether it is in their hands or not? So it seems to me, that the whole discussion of this subject lacks a basis in reality. Discussing genuine topics is either dangerous or useless, and so these third rate subjects are conjured up out of thin air. Of course, I do fully understand how these amendments originated. There is the one dissenting opinion of Judge Konstantin Aranovsky on the ruling on checking the constitutionality of the law providing for the right to housing for victims of political repression.

When he spoke his mind about the Soviet Union, he went “contrary to the line of party and the government” that the Soviet Union was a good thing. This opinion had quite a resonance, the President’s  press secretary, Peskov, commented on it, and decided that it sent the wrong signal. So it is better for dissenting opinions not to be published. People in the system should all have a unified position.

So maybe these dissenting views did make sense if they started a discussion, if they were brilliant?

They were not brilliant to my mind. Of course, the ban on their publication is nonsense. In fact they are a positive thing:  they enable more information to be obtained by the authorities themselves. The whole point of the collegiate composition of the court is to facilitate different points of view. But everyone is so obsessed with unanimity, on holding a common point of view, that it severely affects the quality of any decision-making process. When you all agree with one point of view, this point of view deteriorates in quality. Therefore, all the time there are failures in government policy – there are not enough hospital beds, then not enough ventilators – because there is no quality discussion. Oddly enough, in order to make quality decisions, there must be a quality decision making process, with different points of view, publicly formulated and discussed. But the authorities believe that it is possible to hold discussions only behind closed doors, without taking them out of the courtroom. And for external consumption there must be a common policy. This is in line with what we have now. All this happened a long time ago – the Constitutional Court has for a long time already carried out the requests passed to it from the Kremlin. I do not believe that it is an independent court, able to protect someone from the arbitrariness of the government.

Why do you think this happened? Is it the judges themselves who are to blame for folding, or were they specially selected? 

This is a very good question. In fact, this is the main question that should be asked by lawyers and all those who think about how to reform the legal system when it is necessary: why has this happened, why did the courts give up practically without a fight? Here I’m referring to judge Kononov in the 2000s, when everyone was well fed and, as is usually thought, expressed dissenting opinions, moreover not like Aranovsky on third-rate issues but instead on a number of more complex topics. Then the judges in the Constitutional Courts and in other courts too who would speak, act, and make decisions openly could be counted on the fingers of one hand. 

We didn’t see any fundamental protection of the Constitution, protection of human rights, protection of the law by judges and by other institutions whose role is to do just that. Why? I have an answer to this question. The reason is, in 1991 when there was political will for changes and reforms, everyone limited themselves to economic reforms. There was no significant reform of the legal system and in particular, no one reformed the courts. The Constitutional Court was created and there were some other structural changes, but the work of the district or regional courts when considering criminal cases, for example, has not changed in any way. While the people there have changed, the institutional memory has stayed. The institutional memory of the modern district court is the GULAG, Stalin, socialist legality and all the rest. 

What is there left to say when they haven’t even bothered to rename the district courts. In St. Petersburg, there is a Dzerzhinsky district court, and the name fits this court well. The court is the  Dzerzhinsky court for a reason; it’s found in the former Dzerzhinsky district of Leningrad – where the KGB, now the FSB, was located. And now it is this very Dzerzhinsky district court that makes decisions on remanding in custody.  If a request is sent to the court by an investigator from the FSB for St. Petersburg and the Leningrad region, it’s because it’s located in this district. According to this idea and the logic behind it, it works exactly as the Dzerzhinsky district court of Leningrad worked. The logic is simple – we do not protect citizen, businesses or anyone else from arbitrariness, but we help the state; we are part of the system. This is how the district court sees itself, this is how judges are selected there. It is for those who play by these rules. If you were to play by other rules, it would be impossible to remain in the system. In effective legal systems, a judge does not and cannot have superiors. In the Russian system the courts have a hierarchy. There is a vertical structure, so there is no need to telephone one particular judge: every judge will obey and execute demands. 

Meaning that all these conversations about how a judge seems to really want to get to the bottom of a matter are meaningless?

No, there may be individual cases where the state is uninterested in a particular result and the opposing sides don’t have the ability to get to people on a high enough level who can make a telephone call.  And then the judge has no option but to issue a decision based on his understanding of the law.  Considering the amount of pressure on the courts, you can conclude that the most competent lawyers are not to be found there. Therefore, even if they want to reach a fair decision, it does not always turn out that way. But then, it is inadequate in some cases to issue a fair decision but in others to defer to a telephone call.  As Martin Luther King said, the absence of justice somewhere is the absence of justice everywhere.   Strictly speaking, that is the point of the constitutional prohibition on arbitrary treatment.  You cannot behave in one place in a particular way, and somewhere else in another way.  It is enough to issue one decision as a result of a phone call to totally undermine the entire justice system.  Which is what we have seen: what is happening now is the result of one case that began in 2003.

The Khodorkovsky Case?

Yes.  And when it became clear that such a thing was possible and no one would oppose it—things were off and running.  And now no one conceives of a court as an entity capable of making an independent decision.  For the majority of practicing lawyers, this is not surprising.  I myself signed an open letter a couple years ago where all this was said — that we are losing the justice system in our country.  Now we have а situation where the head of state says that he called the General Prosecutor and asked him to let someone leave the country.  A system like this, when it’s necessary to call and decide the individual problems of individual people, this is not a justice system.  The entire point of the law is that Justice is blindfolded, she does not know who exactly is in front of her, because if she knew, standard approaches would be impossible.  And if in our country we let Navalny out but not Petrov, or vice versa, that is not law, that is something else. 

Getting back to the Constitutional Court — perhaps the publication of dissenting opinions at least reminded us of what you are speaking about now? 

For that, do you really need the dissenting opinions of Constitutional Court judges?  In this question I agree with my colleague Ilya Novikov, who said that in the current situation we need sober and clear awareness and not simulations and phantoms.  Dissenting opinions of Constitutional Court judges in the current situation are precisely simulations and phantoms, an attempt to show that something in fact is there.  No, here you have to simply understand what exactly the courts are, as Ilya said, in Putin’s Russia.  And then what the point is of dissenting opinions—I think it is a pure mania for scribbling.  It is just a release of steam with no influence on the actual substance.  The road from the Constitutional Court is a straight line to universal human values.  But now, I think, it is totally justified to say that the significance of the Constitutional Court  – thanks among other things to its own actions – is practically equal to zero.

Translated by Graham Jones, Elizabeth Rushton, Nicky Brown, Nathalie Corbett, Anna Bowles, Fergus Wright and John Tokolish

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