Amendments to the Russian Constitution that came into force a month ago, introduced unprecedented changes to the country’s Basic Law—unseen since its adoption almost 27 years ago. Both legal practitioners and scholars agree that constitutional rights and freedoms of the Russian people are now in jeopardy.
According to official data, 77.92 percent of Russian people voted in support of amending the Constitution. In 1993, 58.4 percent voted to adopt the new Russian Constitution. Photo: rk.karelia.ru.
On January 15, 2020, in his State of the Union speech, Russian President Vladimir Putin presented his proposals for comprehensive changes in the Russian Constitution. On January 20, Putin submitted draft amendments to the State Duma, the lower house of the Russian federal legislature. In the course of several weeks, the initial draft underwent significant alterations, was approved by both houses of the Russian parliament in early March, and was signed into law by Putin on March 14. In mid-March, the Constitutional Court of Russia examined the issue of constitutionality of the presidential amendments and found them to conform with the Russian Constitution. On July 4, constitutional amendments [1] entered into force after the electorate’s approval in the course of the “nationwide vote.”
During almost 27 years after its adoption in 1993, Russian Constitution has never seen such fundamental changes. Whereas Putin’s constitutional amendments introduce significant modifications to all branches of power, this article will focus on the impact these amendments will have on the Russian judiciary.
Under the amended Article 83 of the Constitution, the president will have the power to submit to the Federation Council, the upper house of the federal legislature, requests to terminate powers of judges of various ranks, among them the chairman, deputy chairman and justices of the Constitutional Court; the chairman, deputy chairpersons and justices of the Supreme Court; and the chairpersons, deputy chairpersons and judges of courts of cassation and courts of appeal. Such termination shall be performed by the Federation Council in accordance with the federal constitutional law in cases where a judge has committed an act, which discredits honor and dignity of her office, as well in other cases, such as (1) when there is an indication that a judge cannot perform her functions, and (2) other cases stipulated in a federal constitutional law.
This new power of the Russian president is highly questionable since it is in breach of the fundamental principle that judges should be independent from other branches of power. The president’s new right essentially annuls the principle of irremovability of judges and puts an end to the puny remnants of judicial autonomy in Russia. The president already a final say in almost all judicial appointments; now he is empowered to initiate the termination of judges as well.
Russian case law clearly demonstrates that a judge can easily be labelled as acting in way that “discredits [the] honor and dignity of a judge”—for instance, by refusing to obey illegitimate requests from a court chairperson, or for criticizing the Russian judiciary, or for refusing to unconditionally follow the internal unwritten rules of the Russian judicial community, or for any other attempts to serve as an independent arbitrator (and not as a governmental official who obediently complies with the instructions of his superiors). The ambiguous wording of phrases, such as “an act [that] discredits [the] honor and dignity of a judge” will allow for removal of a judge from the office in the absence of sufficient grounds.
Russian legal practitioners concur with scholars in their criticism of this amendment; they consistently make a point that only the representatives of the judicial community can bring up the issue of the termination of the powers of a judge. Similarly, the Venice Commission, an advisory legal body for the Council of Europe, expressed its concern and pointed out that “under the new constitutional amendments it will be the Executive, i.e. the President who will have the power to initiate a procedure for their dismissal by the Council of the Federation. The right to initiate a removal process vested in the executive arm of government is not necessarily problematic in itself, provided that the process of removal is a judicial one. The introduction of such power in this context, notably on account of the lack of regulation of the removal process in the Constitution, appears to increase the possibility of influence of the Executive over the Constitutional Court.” [2]
The new version of Article 107 (3) of the Constitution establishes the power of the Constitutional Court to exercise a preventive constitutional review by request of the president, if within 14 days after receiving the federal law the president rejects it, and both houses of the Russian parliament shall review it in the order established by the Constitution and approve this federal law in its earlier adopted version by no less than two-thirds of the general number of the Federation Council and the State Duma.
The fact that the right to initiate preventive constitutional control is now granted only to the president raises serious concerns, since the president obtains a constitutionally entrenched power to block the laws that he dislikes with the help of the Constitutional Court. As a result, the parliament will be de facto stripped of the possibility to overcome the presidential veto. The federal laws referred by the president to the Constitutional Court in the course of preliminary constitutional review will be examined by the judges, whose powers can be easily terminated under the president’s initiative in the absence of any consultations, coordination, or recommendations of the bodies of the judicial community. It is highly unlikely that justices of the Constitutional Court will take the risk of ruling that a law that the president does not want to sign, is constitutional.
Amended Article 79 establishes that “decisions of interstate bodies adopted on the basis of provisions of international treaties of the [Russian Federation] in the interpretation contradicting the Constitution of Russia shall not be executed in the Russian Federation.” The new part 5.1 (b) of Article 125 raises to the constitutional level the competence of the Constitutional Court to such decisions. The same constitutional provision empowers the Constitutional Court to decide on the possibility to enforce judgments of foreign or international (interstate) courts, foreign or international arbitrations, which impose obligations on Russia, if such judgments contradict the fundamentals of the public legal order of the Russian Federation.
The Constitutional Court was vested with the right to rule on enforcing judgments of the European Court of Human Rights (ECHR) in 2015. [3] In 2020, this prerogative has been considerably extended and entrenched at the constitutional level. Compliance with the fundamentals of Russia’s public legal order as a criterion of enforceability is highly problematic for the following reasons: (1) the notion of “public legal order” does not belong to the area of Russian constitutional law, (2) its ambiguity constitutes grounds for arbitrary interpretation, and (3) this vague criterion will make avoiding international obligations of Russia both legal and constitutional.
The amended part 1 of Article 125 reduces the number of Justices of the Constitutional Court from 19 to 11. This new provision is totally disruptive and ungrounded; the explanatory note to the draft constitutional amendments offers no explanation for this downsizing, which will inevitably have a negative impact on the court’s efficiency. Another development that restricts individual rights is envisaged in the amended part 4 (a) of Article 125. Under the original wording of this constitutional provision, an individual, who had a case pending in court, and believed that a legal norm or norms that would be applied in her case would violate her constitutional rights and freedoms, was entitled to refer the matter to the Constitutional Court. Now, before lodging a complaint to the Constitutional Court, an individual has to exhaust all national measures of legal remedies.
Changes introduced by the constitutional amendments will have a strong negative impact on Russian citizens, since they significantly reduce their ability to seek the protection of constitutional rights and freedoms in the Constitutional Court. Such people may now have to spend years exhausting national legal remedies before becoming eligible to refer a matter to the national body of constitutional review. It is no wonder that few people will be able to reach their final goal. Reducing the number of justices of the Constitutional Court will affect their workload, the efficiency of the court, and the quality of decisions and determinations. Considering this, as well as constitutionally entrenched option of ignoring ECHR judgments, the future of proper protections for constitutional rights and freedoms in Russia is in jeopardy.
The Russian judiciary will not benefit from the 2020 constitutional amendments. Neither will any Russian citizens seeking protection of their violated rights and freedoms in Russian national courts or in Strasbourg.
References:
[1] Article 1 of the Law of the Russian Federation on the amendment to the Russian Constitution. Available at http://www.consultant.ru/document/cons_doc_LAW_346019/3d0cac60971a511280cbba229d9b6329c07731f7/
[2] Venice Commission. Opinion No. 981\2020 of June 18, 2020, p. 60. Available online at https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2020)009-e
[3] Chapter XIII.1 of the 1994 Federal Constitutional Law “On the Constitutional Court of the Russian Federation.” Available online at: https://www.wto.org/english/thewto_e/acc_e/rus_e/WTACCRUS48_LEG_73.pdf
