20 October 2020
To the President of the Russian Federation, V. V. Putin
On amendments to the federal constitutional law “On the Constitutional Court of the Russian Federation”
Dear Vladimir Vladimirovich,
On 13 October 2020, the draft federal constitutional law “On amendments to the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”” (draft no. 1024643-7) was adopted in its first reading. This draft was prepared in connection with the adoption on 14 March 2020 of the Law of the Russian Federation No. 1-FCL “On improving the regulation of certain aspects of the organisation and functioning of public authority”, which made significant changes to Article 125 of the Constitution of the Russian Federation.
The draft has now been prepared for its second reading, taking into account the amendments submitted during its discussion. Among the amendments recommended for adoption by the Committee of the State Duma on State Building and Legislation are changes to the federal constitutional law “On the Constitutional Court of the Russian Federation” that go beyond constitutional changes to the statute and powers of the Constitutional Court of the Russian Federation, and which appear to limit the application of other provisions in the Constitution that apply to judges of the Constitutional Court and guarantee the rights and freedoms of others.
It is thus proposed to conceptually change Aarticle 76 of the federal constitutional law “On the Constitutional Court of the Russian Federation” concerning a judge’s dissenting opinion. This article is currently consistent with Article 29 of the Constitution of the Russian Federation concerning freedom of thought and speech and the prohibition of any kind of coercion to deny someone the right to express their thoughts and beliefs, as well as with the basic judicial principles of the independence, autonomy and responsibility of judges and the transparency of proceedings.
That a judge will act independently and without influence when casting judgment is guaranteed not only by their right to express their opinion, which may not coincide with the views of other judges, but also to make their view public, bearing in mind the right to publication of a dissenting opinion of a judge in the Constitutional Court as provided for by law. Such regulation gives the opinion of an individual judge public significance, makes them equal in rights with other judges who have made a majority decision in the public eye, and is in accordance with the principle of transparency of legal proceedings. The publication of a judge’s dissenting opinion also guarantees the right of citizens to receive information about the activities of the Constitutional Court and the legal issues it resolves during constitutional proceedings.
The public expression of a dissenting opinion by a judge in the Constitutional Court is something of great value that civil society acquired with the adoption of the law “On the Constitutional Court of the Russian Federation” in 1991. It is important that we do not lose this value, which reflects a certain level of development and democracy in the judicial system and respect for the legal tradition.
Meanwhile, the amendments propose not only to refuse publishing a judge’s dissenting opinion, which is already a significant deviation from the existing level of legal guarantees, but also to establish a strict ban on the publication of the dissenting opinions of a judge of the Constitutional Court in any form. In fact, the proposals consign to oblivion the very idea that a judge’s dissenting opinion is a form of free speech from a minority group. The semantic meaning of this lies in the public expression of a dissenting opinion of a judge. At the same time, the significance of the public expression of a judge of the Constitutional Court goes beyond ensuring only their personal rights. Thus, the dissenting opinion of a judge of other courts is attached to the case materials, the participants in the legal proceedings can familiarise themselves with it, the arguments contained within it are evaluated by the courts that check the relevant judicial acts. In this way, procedural significance is attached to the opinion of the judge. The public expression of the dissenting opinion of a judge of the Constitutional Court is important not so much in relation to constitutional proceedings, but for the judicial community itself, civil society, legislators, for the development of law. The ban on publication and any other promulgation of the dissenting opinion of a judge of the Constitutional Court essentially deprives judges of one of the most important constitutional rights and makes the very idea of a judge’s dissenting opinion meaningless.
The loss of this right to public expression, aggravated by the prohibition of any criticism of decisions of the Constitutional Court’s decisions, which is also proposed to be included in Article 11 of the law, significantly limits the independence and individual agency of judges and the transparency of legal proceedings, without which justice is unthinkable. The adoption of these amendments creates conditions for undermining civil society’s already low confidence in the court. It was in the interests of justice and the public’s confidence in the judiciary that guided Russian judges when adopting the Code of Judicial Ethics, which in Article 13 establishes no prohibitions on criticism, the concept of which is very vague, or on interaction with the media. It only calls for restraint and correctness when commenting on the decisions of their colleagues.
In this regard, as well as to minimise the risks associated with restricting the rights of citizens to receive objective information on the activities of the Constitutional Court, reducing the level of public confidence in the judiciary, as well as the risks of reducing judges’ free and public expression, it seems necessary to reject amendments to draft No. 1024643-7, which provide for amendments to Articles 11 and 76 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”.
Members of the Presidential Council for the Development of Civil Society and Human Rights:
1.Andreeva, Tatiana Konstantinovna
2. Asmolov, Aleksander Grigorievich
3. Babushkin, Andrei Vladimirovich
4. Vinokurova, Ekaterina Vladimirovna
5. Evdokimova, Natalia Leonidovna
6. Zasursky, Ivan Ivanovich
7. Karaganov, Sergey Aleksandrovich
9. Makovetskaya, Svetlana Gennadievna
10. Margolina, Tatiana Ivanovna
11. Merzlyakova, Tatiana Georgievna
12. Merkacheva, Eva Mikhailovna
13. Mukomolov, Aleksander Fedorovich
14. Myslovsky, Evgeny Nikolaevich
15. Nikitinsky, Leonid Vasilievich
16. Pastukhov, Igor Nikolaevich
18. Ryakhovsky, Vladimir Vasilievich
19. Soboleva, Anita Karlovna