26 April 2021
S. Kriuchkov: […] Based on the everyday realities of many of our compatriots today, there is legislation, there is the law, and there is a context for the application of this law. When you understand that the law serves as a prop, maybe for a regime that’s not the most agreeable to you or to a course of action that is not entirely acceptable to you, when such a choice or decision arises – to live according to the law, whatever it may be, or to live according to your own point of view and understanding of the situation, one in which the law can be immoral, repressive and unjust. How do you determine that line so that, on the one hand, you don’t fall into the clutches of the police and security agencies, and on the other, you don’t abandon your principles? Can you address that?
K. Moskalenko― Well, I will try. You see, I consider myself an anarchist in the best sense of the word. Those who have studied this topic understand that the anarchist movement in general was a very important aspect of Russian life at the beginning of the last century. And if I personally allow myself to be an anarchist, it means that the constitutional document is very important to me.
Here in Russia we have a basic law – this is the constitution. This is the constitution that gives me the opportunity to live according to my conscience. There are many different laws, and even more bylaws. And then there are unlawful laws and regulations, and these in ample number as well. And it would be very difficult for me to choose to do what you are suggesting: to put myself at the service of some wrong cause or of some mistaken position of whatever authority it might be – whether judicial or executive.
Such a notion doesn’t even occur to me. Quite fortunately, a constitution was created in Russia – in the early 90s. There was a lot of controversy, but there were people who wrote it. Do you know how they wrote it? There are, of course, different sections. I am interested in the first and second sections. The first section is the general provisions and the second section is about human rights.
They drew upon the Universal Declaration of Human Rights. They drew upon the International Covenant on Civil and Political Rights, and the International Covenant on Social, Cultural, Economic Rights – the two covenants deriving their force from the UN. And they drew upon, as another example, the European Convention. They probably drew upon some other very important documents.
But in fact, this document of ours, the basic law of Russia, is structured in such a way that it enables me to be a lawyer. Because if tomorrow in court someone curtails any of my clients’ rights, and these rights are stipulated by the Convention on Human Rights or the Russian Constitution, I can calmly deal with this case according to my conscience and insist on their rights, on a legal approach.
And when they say to me: ‘Well, as you know, in Russian legislation there is no such possibility, for example, to appeal this or that illegal action in court,’ I say: ‘No, excuse me, please. There are fundamental norms, including the Russian Constitution, in which this right is enshrined. This means that all the rest, if you please, should be brought in line with the Constitution, and not vice versa.’
And when the Constitutional Court had such a very good membership – stellar, shining – I simply loved it. I was proud to be friends with some of the members of the Constitutional Court. We can already say that Ernest Mikhailovich Ametistov was in this galaxy of lawyers, Tamara Georgievna Morshchakova and others were too. And you know, I’ve been to the Constitutional Court several times to fight for the Constitution, for constitutional rights, and each time I did so I was rewarded.
Nowadays the Constitutional Court also makes a certain number of very important decisions that can be used to restore people’s rights to them. Sometimes the Constitutional Court gently evades giving answers to very serious and acute questions. They probably have their reasons for doing so. But I’ve not gone there lately, unfortunately.
But I do have another option. The fact is that there is another form of law in our country that operates at the same level as the Constitution. This is the European Convention for the Protection of Human Rights and Fundamental Freedoms. And you know when they say “this is how things are decided in Russia” – Stop! In Russia things can be decided in various ways but they cannot contradict the requirements laid down in the European Convention.
S. Kriuchkov: What should one do in a situation when a law or a judicial ruling is adopted and doesn’t seem to violate the European Convention at that time, but then it gets built on or interpreted and at some later point it suddenly does violate it?
K. Moskalenko: It’s very simple. We must fight. Fight, so that a ruling does not contravene the Convention. If it does, then we need to go to the Constitutional Court. I have a lot of friends, constitutionalists, who are able to effectively use this procedure, even when the authorities are reluctant to answer questions. That said, there are some questions to which the Constitutional Court simply has to respond. And my lawyer friends are able to achieve what they consider to be legal protection through the Constitutional Court. I deal more with the protection of human rights in the European court. Of course, that does not mean that I work solely in Strasbourg and that nothing else is of importance to me.
As people often tell me “You are too boxed in at the European Court and with the European Convention.” I’ve worked a lot in Russian courts you know. This is the source of my sense of professional fulfilment. It is only when I am in court, when I am debating, asking questions, going through the motions, that I know I exist as a lawyer. Sometimes I get it when challenging something, objecting to something said by the presiding officer. And sometimes I feel it, although more rarely now, when I make speeches in front of a jury. This is because it’s a very special opportunity for Russian lawyers to convey to the jury the essence of their position and their vision of justice. But if I’m able to achieve something at the national level – and believe me … You once said (here, I even wrote it down): an experienced lawyer. I would not exaggerate my experience, because we all make mistakes, we are all far from perfect. But if I am convinced of my position, and I am unable to protect human rights at the national level, then I go to the European Court of Human Rights.
And I resort to this course of action much too often, unfortunately. Most of the time, I don’t go out looking for the matters to which these cases – my cases – relate; the people involved seek me out. It is these very cases that I often find myself obliged to take to the European Court of Human Rights. And it is when I take a case to the European Court of Human Rights or address the chamber that my involvement at national level really proves its worth. This is a rare occurrence, and even rarer nowadays given that almost all public hearings before the European Court of Human Rights have been cancelled. I believe that they will resume sooner or later, however, and that we will all live happily ever after.
М. Maksimova― You sound quite optimistic. You once said in an interview that you love taking on hopeless cases, and that if someone approaches you with a hopeless case, you know for sure that you should accept them as a client. Don’t you feel like there has been an awful lot of these hopeless cases recently? You just now spoke about your work as a battle, saying that the answer to Chernyshevsky’s perennial question of “What is to be done?” is to fight. I don’t know – is it possible to assess how successfully you are fighting this battle under the current conditions?
K. Moskalenko― Success is a big word. You know, I am always critical of myself. You’re correct, I was indeed called the “champion of hopeless cases” in one fascinating article. It is true that I take on a great many hopeless cases, but I do not do so because they are hopeless. If I do not believe that there is a good case in law, I won’t take the case on. Yet if I believe that there is a strong case, if I believe that a set or sets of rights have been violated, and if I know for sure how the situation should ideally be resolved, I have recourse to my own ideal – the Russian Constitution and the European Convention on Human Rights.
In so far as possible, some members of our group devote themselves to dealing with the Constitutional Court while others deal with the European Court of Human Rights. I have to admit that since 1999 our group of legal experts has effectively acted as the Russian section of the International Commission of Jurists. This organisation is a huge source of support for us, because it continues not only to listen to our problems and read our submissions, but also to respond to them in some way, which is very important to us.
Yet on the other hand this is also a huge responsibility, since there is no national section of the International Commission of Jurists in Russia, as there is in many other countries. I believe that one will be set up one day, but I’ve simply never been ambitious enough to transform our group into a national section.
What would be the point? In contrast to somewhere, let’s say, like Germany, it would be very difficult to establish an organisation of this kind in our country. The German national section of the International Commission of Jurists includes judges, lawyers, public prosecutors, normal legal practitioners and law scholars. In Russia, people stick to their own kind – huge gulfs exist between the different castes, if I may use the term.
Broadly speaking, a judge who greets me in the corridor is a judge who has no self-esteem, or perhaps who garners no esteem from his or her colleagues. As a general rule, judges do not greet us. Even the judges’ secretaries, or more recently their assistants, are sometimes inexcusably rude to us, but there you go…one mustn’t complain. It’s natural to get put in your place.
This solidarity – what we call the “legal community” – is of course very different in France, Germany, the United Kingdom or the United States. If you are a lawyer in Russia, you must know your place. [Read more in Russian]