Boris Vishnevsky – Secret Opinion. The Dismantling of the Rule-of-Law State in Detail: Constitutional Court Judges Prohibited from Public Dissent

18 October 2020

Boris Vishnevsky, deputy to the St. Petersburg Legislative Assembly, laureate of the Moscow Helsinki Group prize

 Source: Moscow Helsinki Group [original source: Novaya gazeta]

On 13 October the State Duma passed on first reading changes to the law on the Constitutional Court – for the purpose of implementing the changes to the Constitution voted on in July. 

The changes reduce the Constitutional Court’s numbers from 19 to 11 judges, to make them easier to govern, and give the president the right to initiate the removal of any judge from his position. 

The dismissal of a judge is to be carried out by the Council of the Federation (which no one has ever become part of without a prior nod from the presidential administration), so that this sword of Damocles will always be hanging over any judge should he suddenly feel like deeming anything signed by the president unconstitutional. 

Only a very capacious imagination could call such a Constitutional Court self-sufficient and independent.  

However, even this seemed too little to two luminaries of national legal thought (the cochairs of the notorious “working group on preparing corrections to the Constitution”): Andrei Klishas, head of the Committee on Constitutional Legislation and Legal and Judicial Issues of the Council of the Federation; and Pavel Krasheninnikov, head of the Duma Committee on State Construction and Legislation. 

And they proposed several corrections to the document that hogtie judges even more. 

So far, judges are still allowed, while considering cases, to have an opinion that differs from that of the majority of their colleagues. 

However, they will be strictly forbidden to mention this opinion. 

The two mentioned doctors of law proposed forbidding judges “to criticize in any form whatsoever” decisions of the Constitutional Court and, after the closed conferences (where Constitutionial Court decisions are usually written) and sessions where it is decided whether to bring a case before the Constitutional Court, to forbid them “to divulge the content of the discussion and the results of the voting, including making public their own dissent from the decision taken in any form whatsoever.” 

Regarding the separate opinions to which a Constitional Court judge who is not in agreement with the Constitutional Court’s decision wholly or in part has a right, it is proposed to leave judges the right to set forth in writing their opinion, which “shall be attached to the proceedings of the Constitutional Court session and kept together with it.” However, a judge does not have the right to make his own opinion public in any form whatsoever or to refer to it publicly. 

In fact, this constitutes a requirement that judges of the Constitutional Court who do not agree with the majority of their colleagues give a vow of silence after a decision is made. 

And if you violate it, you can say goodbye to your position. Open your mouth to mention your dissent and you are committing acts “incompatible with the position of judge,” after which, under the new law, the president has the right to initiate the “dissident’s” removal. 

This is called knocking on the legal bottom from below again. 

The institution of separate opinions by Constitutional Court judges has existed since this most important state institution began its work and has been exercised quite often. 

Including by current Chair of the Constitutional Court, Valery Zorkin, who in the summer of 1995 (being an ordinary judge of the Court at the time) expressed a separate opinion in the matter of the constitutionality of the presidential degrees that began the first war in Chechnya. At the time, Zorkin told me that “as a judge, my conscience does not let me approve this decision.” At the time, Tamara Morshchakova, Anatoly Kononov, Nikolai Vitruk, and Boris Ebzeev formulated separate opinions on this issue along with him. 

Very often, separate opinions – moreover on the most high-profile cases -have been expressed by Anatoly Kononov, including on issues of freedom of assembly and authorities’ right essentially to prohibit rallies, on the Yukos case, and many others. 

In 2009, Kononov was basically forced to leave the Constitutional Court, but then another “troublemaker” showed up: Konstantin Aranovsky, the former head of Primorsky region’s electoral committee, who wrote many separate opinions. 

For example, on the “criminal filter” (the removal from elections of those who have been sentenced to incarceration for a serious crime in the 10 years after the expungement or cancellation of a conviction; the most famous application of this filter has been the ban on the candidacy of Aleksei Navalny, who was given probation in the Kirovles case). After examination of this case, Aranovsky stated that from time to time the electorate allows itself errors and carelessness, but this does not provide grounds for restricting their right of choice. Because “it is not a function of the government to restrain citizens from a mistake but rather the function of citizens to restrain the government from a mistake.”  And that “the authorities are not obligated, nor do they have the right to protect and shield the electorate from every possible error, from a wrong choice, and guarantee them a select slate of candidates.”

Another example is the case of Russia’s payment of compensation in the Yukos case (the Constitutional Court decided that Russia did not have to pay, inasmuch as this violated the constitutional principles of a social state). At the time, Aranovsky (Constitutional Court Judge Vladimir Yaroslavtsev issued yet another separate opinion) stated that he considered the logic of justifying failure to implement court decisions if this prevented the country from spending money on social goals “strange,” that the burden of social expenditures does not give the state immunity from the court. 

Finally, the most famous instance is Aranovsky’s separate opinion on the legal succession of the Russian Federation to the USSR. At the time, the judge stated that the contemporary Russian state was created not as the successor to the Soviet Union but “instead of and in opposition to” it. 

At the time, one recalls, there was serious indignation in the Duma at the judge’s freethinking.

However, in response, the Council of the Federation reminded them that “the possibility of setting forth a separate opinion is one of the guarantees of the independence of a judge of the Constitutional Court.” 

Characteristically, this response came from Andrei Klishas. 

Now, by all accounts, he has changed his mind. 

P.S. The Klishas-Krasheninnikov amendments have already been included in the table of those which the Duma Committee on State Construction and Legislation is recommending for passage on second reading. By all accounts, then, the result is a foregone conclusion.

Translated by Marian Schwartz

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