29 December 2021
by Aleksandr Podrabinek
Yesterday, the website of the Constitutional Court of the Russian Federation published a book by the chair of the Court, Valery Zorkin, with the pretentious title Constitutional Justice: Procedure and Meaning. It contains a great deal about procedure, but as for meaning there is only one and it is set out in the title of the first chapter: ‘Under the Sign of the Renewed Constitution.’ The chair of the Constitutional Court kowtows to President Putin, who has just wiped his feet on the Constitution.
To convincingly justify lawlessness is the supreme skill of the swindler. Not everyone can do this but Zorkin does it better than most. Partly because he skillfully drowns the meaning of what he says in stodgy discussion of procedural matters.
Zorkin is concerned with three issues: Crimea, human rights and intergovernmental justice. To be more precise – justification of the annexation of Crimea, the admissibility of restricting human rights and the non-binding nature of international law for Russia.
Justifying the aggression against Ukraine, Zorkin refers to a certain ‘new fundamental principle of international law, which has not yet been officially introduced into the UN Charter but is generally recognized.’ Zorkin does not specify when, by whom, or how this ‘principle’ was recognized. According to him, it requires ‘the international community to provide direct protection for citizens of a country which is flagrantly violating the fundamental rights of its own citizens, including the right to life and security, and is unwilling or unable to stop such violations.’ In Zorkin’s view, Russian forces entered Crimea to protect Ukrainian citizens from encroachments on their rights by the Ukrainian authorities!
Generally speaking, this is not a bad principle – it would at once put an end to human rights violations in Russia, and in particular to Valery Zorkin’s efforts to justify the criminal behaviour of the authorities. When this principle really does triumph in international relations, neither the seizure of foreign territories nor the oppression of one’s own citizens will go unpunished. In the meantime, it can be used for utilitarian imperial purposes.
Generally speaking it’s forbidden, but in principle it’s permissible
Zorkin writes a great deal about human rights, joyfully and in detail, but only to admit the possibility of their limitation. This is particularly evident in his discussion of the death penalty, which is generally speaking prohibited, but is, in principle, permissible. The fact that its application in Russia is currently impossible, Zorkin writes, ‘does not exclude the possibility of a return to this form of punishment in the future.’ He even explains that ‘as long as there are premeditated murders, the question of the use of the death penalty will remain open.’ In other words, murders will cease only when we kill the last murderer. That is, never.
To add a sheen of academic depth to his reasoning, Zorkin refers to Hegel and Kant, who, while intellectually constructing an ideal system of justice, allowed the death penalty as retribution for murder. However, European law has advanced a little in the last 200 years, and most importantly, neither Kant nor Hegel could probably have imagined that law could be so violently abused by politicians as happened in some countries in the twentieth century.
The return of the death penalty is for Russia a political, not a legal issue. Contrary to the widespread misconception assiduously propagated by state propaganda, there is no legal moratorium on the death penalty in Russia. Its absence in practice is based on a non-binding ruling of the Constitutional Court from 19 November 2009. This is a very fragile foundation, especially given the decorative nature of all the activities of the Constitutional Court.
THE WEATHERVANE MAN
No law on a moratorium of the death penalty has been passed. Russia signed Protocol No. 6 of the European Convention on Human Rights, prohibiting the death penalty in peacetime, and that was the end of it. Russia is the only one of the 47 member countries of the Council of Europe that has not ratified the Protocol, although under the terms of its accession to the Council of Europe it had to do so not later than May 1999.
The death penalty as a form of punishment is retained in the Penal Code – there are five articles of the Code that apply in peacetime providing for the use of the death penalty. Judges may impose the death penalty by law, and do not do so only because of political constraints. In the absence of such constraints, the death penalty will easily return to judicial practice. Chair of the Constitutional Court Zorkin is intentionally preparing the ground for this.
Valery Zorkin is a weathervane of a man. But he is not a weathervane like all the others. He cunningly manages to have his nose to the wind before the wind even reaches his nose. This is a rare ability and the highest class of bureaucratic skill!
Zorkin has always tried to keep in step with the times. In the early 1990s, in the years of democratic hope, when he was already chair of the Constitutional Court, in one of his speeches he humbly and sadly told his democratic audience that all his life he had been guided by the commandment ‘Judge not, and ye shall not be judged.’ I almost burst out laughing when I heard this from the lips of a judge.
Today there is much less cause for laughter. The head of one of the pillars of the Russian judicial system is painstakingly preparing the legal framework for the restoration of totalitarianism.
Translated by Simon Cosgrove