Boris Vishnevsky: The Constitutional Court has allowed a little violation of the Constitution, if it is very necessary

30 December 2020

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

Source: Moscow Helsinki Group [original source: Новая газета]

The Constitutional Court published resolution No. 49-P from 25 December 2020 on the verification of the order of the governor of the Moscow region who had imprisoned citizens in ‘self-isolation’, regardless of the constitutional provision that allows the restriction of constitutional rights (including the right to freedom of movement) only by federal law. Even the Protvinsky City Court, where one citizen who had been fined for ‘violation of the regime’ appealed, doubted the governor’s right to disregard the Constitution. The Court referred its query to the Constitutional Court: is the ‘self-isolation’ requirement, introduced by the governor’s decree, compatible with the Constitution? The Constitutional Court confidently stated that it was. Since the requirement was ‘dictated by an objective need for a quick response to extraordinary danger’, the measures passed were ‘short term’, and the possibility of their establishment ‘eventually received confirmation in federal legislation’. To put it another way, in the case of ‘objective necessity’, for a short period it is possible to violate the Constitution. In general, it’s not possible, but if you really want to… a ‘remarkable’ position for the institution that is supposed to defend the Constitution. It is as though the Criminal Court said: if it’s objectively necessary, for a short time you can steal.

The lengthy decision of the Constitutional Court comprises the same repeated incantations about the importance of protecting the life and health of citizens and about the authorities’ responsibility for the care of the clinical and epidemiological wellbeing of the population, including ‘through the adoption and implementation of laws, aimed at preventing and eliminating risks to the life and health of citizens arising in connection with epidemic diseases.’ 

And the ‘necessity to defend the life and health of citizens in instances of extreme situations or the threat of such instances, and the presence of measures to deal with an epidemic and the mitigation of its consequences… suggests the adoption of such legal acts, not excluding the possibility of the restriction of people’s rights and freedoms, including freedom of movement.’

There are also many repeated statements about the ‘extraordinary character of the situation’, ‘unprecedented threats’, ‘temporary measures’ and ‘necessary anticipatory legal regulations’, which ‘in a specific historical situation’ cannot ‘be considered illegal’…

However, in the Constitution (the compatibility with which the regional governor’s decree had to be measured) there are no such concepts, as ‘extraordinary situation’ or ‘unprecedented threats’. Nor is there anything written about the possibility of ‘anticipatory legal regulation’, that is the possibility of taking illegal but ‘short-term’ measures.

Rather, there is the completely unambiguous wording of Article 55, Par 3: constitutional rights and freedoms can be restricted only by federal law. And not by a governor’s decree.

And there is Article 56, permitting the temporary restriction of rights and freedoms, but only in circumstances of a state of emergency, which had not been introduced.

The devious ‘high alert’ regime, passed under ‘the threat of a state of emergency arising’, which was declared in all regions, does not give the authorities the power to restrict the rights and freedoms of its citizens: this is spelled out clearly in the Federal Law ‘On Protection of the Population from Emergencies’.

But none of this stopped the Constitutional Court from making its decision, using fundamentally unconstitutional (not to mention, not specified in legislation) definitions. In fact, by making its decision not according to the Constitution, but according to ‘unspoken understandings’.

There is also a quite incredible sentence in the Constitutional Court’s decision. It says, ‘the state’s adoption of necessary and temporary restrictive measures regarding free movement is aimed at the self-organisation of society at the emergence of a common threat and thus is a form of social solidarity based on mutual trust between state and society.’ 

In other words, by preventing citizens from leaving their homes with the threat of fines, the authorities are working towards a self-organising society. The restrictions themselves are, as it turns out, a ‘form of social solidarity’.

It is one thing when citizens themselves, seeing a real threat, restrict their own movements. But to pronounce these heavy-handed restrictions to be a ‘form of social solidarity’ is somewhat Orwellian: Slavery, it appears, is not slavery but freedom…

Of course, the Constitutional Court, as well as the Kremlin and the governor of Moscow Oblast, knew perfectly well that entirely legal means of restricting freedom of movement existed: the introduction of a state of emergency, the introduction of an emergency situation regime, and the introduction of an official quarantine (in accordance with the federal law ‘On the sanitary and epidemiological welfare of the population’).

None of this was done.

And it is clear why (I had to write about this in Novaya gazeta in the spring): the authorities want to impose numerous restrictions and penalties for violating these restrictions without incurring the statutory costs.

Because, in an emergency situation regime, quarantine, or state of emergency, the law requires citizens to be compensated for financial losses caused by introducing restrictions and taking emergency measures.

But both federal and regional authorities wanted to have the right to impose restrictions and limitations without having any obligation to their citizens. 

This is the sort of cynical behaviour by the authorities, in terms of constitutionally significant values, that would bring about a constitutional and legal assessment by the Constitutional Court. Then, as it were, there would be no cost to them. But the court took another path: advocating for the human rights violators; legalising unlawful acts under the pretext of ‘extraordinariness’.

One last thing. It is worth recalling that the Constitutional Court was already using the words ‘extraordinary situation’ in their decisions a quarter of a century ago regarding the constitutionality of President Boris Yeltsin’s decrees, on the basis of which the war with Chechnya began. The army was deployed, which is possible only in an emergency regime or under martial law, which had not been declared. 

The Constitutional Court then stated that the territory of Chechnya ‘constituted an extraordinary situation’. And thus, the president’s actions were justified.

One Constitutional Court judge responded with a dissenting opinion.

Agreeing that the situation was indeed ‘extraordinary’, the judge stated that ‘there are different kinds of extraordinariness, which implies, accordingly, the use of different measures in response.’

The President and the entire system of executive authority ‘have a vast array of powers specifically provided for in the Constitution and existing law’ for responding to an extraordinary situation, including the introduction of a state of emergency or martial law. However, ‘none of these powers were applied, the President instead resorting to strategies and methods not directly enshrined in the Constitution and the law’. If the president believed that it was impossible to act according to existing laws, why did he not come up with a legislative initiative to introduce the necessary amendments to these laws?

One final quote from the Constitutional Court judge’s dissenting opinion.

‘If the acts under consideration are, as recognised by the Constitutional Court, constitutional, then mass violations of human rights and widespread destruction of civilian objects (as mentioned during the trial) are also constitutional. Or is this the result of “individual excesses” of the enforcers, primarily the actions of an army that is no longer obeying its Supreme Commander-in-Chief. But after all, having enacted the decree on the use of the Armed Forces in Chechnya, the President expressly put the soldiers under the protection of the Constitution. And what then?’

The name of this judge was Valery Zorkin.

Translated by Mercedes Malcomson and Verity Hemp.

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