Sergei Pashin: Racing on the ‘Vertical.’ What I find grating in the proposals for constitutional reform

17 January 2020

Retired judge Sergei Pashin is a member of the Moscow Helsinki Group

Source: Moscow Helsinki Group [original source: Адвокатская улица]

Advokatskaya Ulitsa [Lawyer Street] continues to publish the opinions of authoritative legal scholars on how the constitutional reform announced by the president will affect the Russian legal system. Especially for Ulitsa, Sergei Pashin, Moscow Helsinki Group member, retired federal judge, professor in the department of judicial power of the law school of the Higher School of Economics, expert on the Presidential Council on Human Rights, and initiator of the introduction of jury trials in Russia in the 1990s, has written a column about the fact that he sees in the reform “ideas that substantially deform the judicial system.” He is worried that should all the changes mentioned in the President’s annual State-of-the-Nation speech be adopted, the Constitutional Court might turn into a “branch of the presidential administration” and independent judges would be blacklisted. But most of all, Sergei Pashin is saddened by the fact that the president’s “far from the best ideas” are already being perceived “as accomplished fact.”

France to this day produces a variety of expensive wine that is poured into bottles with a curved neck: once upon a time, a winemaker, wishing to flatter Louis IV, stated that everything bows to His Majesty, even vessels. In contemporary Russia, on the contrary, everything stands at attention along the vertical of power.

President Vladimir Putin repeated virtually word for word Vladimir Lenin’s notorious article “On dual subordination and legality,” demanding regional legislatures (legislative assemblies) be stripped of their right to approve candidates for prosecutors of republics and regions. Like that other leader, the president has come out as an opponent of “homegrown legality” (in the Lenin version, “Kaluga and Kazan” legality). At the same time, in our supposedly federal state, prosecutors and heads of departments of internal affairs at the district level are not only not elected by the population, as attorneys and sheriffs are in the United States, but they are appointed from Moscow. Naturally, these officials, who are so close to the population, perceive “the people devoted to them” as plunder, and their superiors as patrons.

The speech makes it unambiguously clear that the state is not going to swerve from the route that leads to limiting the influence in the country of the European Court of Human Rights and other international human rights bodies. Right now the role of Cerberus preventing the implementation of ECtHR judgments issued in the interests of Russian citizens has been entrusted to the Constitutional Court, acting on the advice of executive bodies. However, its “throughput capability” is not great. Won’t the leadership want to include at the same time the Supreme Court (which is at the ready) in the business of defending the Russian Constitution from incorrect Strasbourg notions about human rights ?

Regulations forbidding our nation’s judges from having foreign citizenship or foreign residency were approved long ago, and strengthening such measures in the Russian Constitution changes nothing.

However, the presidential address contains ideas that substantially deform the judicial system. Following ill tradition, these innovations were announced unexpectedly, dumped like snow on our heads (similarly to how they dealt with transferring the highest courts to St. Petersburg or introducing courts of appeal). The decisions in question, which are shattering the foundations of judicial authority, were not planned in advance, or at least they did not find reflection in the special federal program “The Development of Russia’s Judicial System for the years 2013-2020” (approved by a Russian government resolution dated 27 December 2012, No. 1406). One gets the impression that the innovations arose on a whim, and their substantiation was the will of the man at the top.

And so, Vladimir Putin proposed “strengthening the Constitutional Court’s role” by giving it the following authorities: verifying the constitutionality of draft laws passed by the Federal Assembly on the eve of their signing into law by the President; “assessing the accordance with the Constitution … of other statutory-legal acts of organs of state power on both the federal and regional level.”

The first power reduces the Russian Federation Constitutional Court to the level of a governmental administrative body that recommends whether the head of state should exercise his veto. That is, it essentially makes the Constitutional Court a branch of the Administration, a “сourt council,” or more precisely, a palace one.

In 1991, when the first law in Russia’s history about a Constitutional Court was passed, it was considered particularly important that, unlike the USSR Constitutional Oversight Committee, the Russian Constitutional Court should not perform apparatus functions to the detriment of judicial ones. Indeed, can a judge of the Constitutional Court, having spoken on a law’s constitutionality and thereby recommended to the President that he sign and promulgate it, then suddenly declare it unconstitutional in response to a complaint by a fellow countryman whose rights were infringed?

The second proposed power would place the Constitutional Court in conflict with the constitutional (statutory) courts formed in several Russian regions, donor regions as a rule. Right now there are somewhat fewer than 20 such regional courts, but they evaluate acts by the authorities of republics and regions (naturally, through the prism of their accordance with local constitutions and regulations). The Russian Constitutional Court already has the right to verify the constitutionality of federal and regional laws, but if it is heaped with other statutory acts from both levels (all kinds of regulations and letters of instruction), the Constitutional Court will be choked up. What is major will drown in what is minor, the “strategic avoidance” of decisions on fundamental human rights questions typical for the Russian Constitutional Court will find justification, and the power of the Secretariat, which filters out peoples’ appeals as they approach the judges, will increase many times over.

Both of President Vladimir Putin’s proposals weaken the role of the Russian Constitutional Court and even smack of a certain overbearing sarcasm.

Finally, the guarantor of the Russian Constitution wanted to introduce into the Federation Council notions about judges’ removal from their position. Today, the appointment of high-level judges depends wholly on the consideration of the head of state and, more precisely, his apparatus and the law enforcement agencies that meet in an unconstitutional commission to consider candidates for the servants of Themis. Now he wants to assign bureaucratic structures as well the right to blacklist judges who have not vindicated his trust. Authority is being taken away from the President of the Russian Supreme Court and the Superior Qualifications Board for Disciplinary Prosecution of Judges, catastrophically removing one of the counterweights to official impunity. Judges called upon to consider complaints against acts of the President and “the entire royal host” will find themselves in an awkward position, to put it mildly; the seal over their heads is being replaced by a sword of Damocles. It should not be forgotten that the human and bureaucratic understanding of “honour and dignity” are different. Their honour is loyalty to the master; their dignity is a situation (“status”) separate from their fellow citizens.

Any act can be called an “offence” if the leaders don’t like it: from criticizing a court decision to violating traffic laws; from an “incorrect” interview to abrogating a decision of a higher office. Here I am citing the incorrect practice of judges’ Qualifications Boards, which has been subject to criticism as well by the Russian Constitutional Court (see, for instance, Russian Constitutional Court resolution dated 28 February 2008 No. Z-P // Collection of RF Legislation. – 2008. – No. 10 (2 parts.). – Art. 976).

It is interesting that Vladimir Putin expressed himself rather strangely, in the spirit of one prime minister of blessed memory, on the subject of his own idea. “This proposal has been made stemming from existing practice. This is obviously not enough today,” he stated. There has never been a practice of removing judges from their position in the procedure proposed in the presidential address, nor could such a thing have come about; there has never been a single such instance. However, if the practice has somehow imperceptibly materialized, what do the president and his officials lack?

It is grating on the ear that the president’s intentions, not even set out in the form of bills introduced to the State Duma, are being received and discussed as accomplished and legitimate fact.

This circumstance confirms the absence in the country of separation of powers and proper constitutional law and order; the “checks and balances” mechanism has rusted from long disuse. It is correct to perceive Vladimir Putin’s ideas as not the best ideas of one of the many bodies in this country empowered with the right of legislative initiative.

Translated by Marian Schwartz

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