Institute of Modern Russia

Institute of Modern Russia (IMR): How do you see the current state of Russian constitutional justice?

Tamara Morschakova: Russian constitutional justice today means the federal Constitutional Court of Russia. On the regional level, constitutional justice is still developing, and so far less than one third of the regions of the Russian Federation have their own constitutional (charter) courts. Important mechanisms necessary to maintain control over regional legislation are still lacking. On the other hand, there is competition among the regional constitutional courts and courts of general jurisdiction, which are in charge of compliance with federal legislative acts.

Russia’s Constitutional Court was set up on October 30, 1991, and since that time it has changed considerably. The first important change took place after the adoption of the new Russian Constitution on December 12, 1993, when the original law on the Constitutional Court was replaced by the Federal Constitutional Law entitled “On the Constitutional Court of the Russian Federation,” which is still in place today. The first question directly related to constitutional justice in Russia is how to evaluate the frequent amendments made to this act. In fact, since its adoption in 1994, the law has been amended more than 5 times.

IMR: Meanwhile, an amendment was once made in your honor?

TM: In fact this particular amendment was made in honor of Justice Marat V. Baglay. The only thing made in my honor was that this amendment didn't affect me at all. When I was a Justice of the Constitutional Court, my status never changed. Inalterability of a judge’s status is one of the fundamental principles securing judicial independence. the status of judges can be changed only in relation to their future. No changes can be made in the status of judges, who have acquired their powers on specific grounds.

IMR: In other words, it’s dangerous to change the status of judges who already administer justice?

TM: We’re touching on a very important topic here, one which I believe to be the most sensitive point in terms of changing the status of the Justices of the Constitutional Court. When the status of Justices, who are already in the Constitutional Court, became subject to changes, this was the first strike against their independence. It was made perfectly clear to them that their status could be modified in any direction. Here we face a situation similar to that of the courts of general jurisdiction, when new legislative amendments changed the life appointment for judges of the courts of general jurisdiction for appointment until the age of 65 years. Please note, that very soon it became clear that's it's too expensive for the Russian judiciary to fire judges at the age of 65. The question was, where do we get new judges? Then the retirement age was increased to 70 years. But a considerable number of judges left the judiciary. Then certain decisions were made, which clearly demonstrated that the status of judges could be arbitrarily changed. The main problem is that judges are constantly informed that regardless of their wishes, their status can be changed at any moment. At the same time, the only change that would not threaten judicial independence would be the establishment of a life-long appointment for all judges in Russia.

IMR: How would you comment on the Constitutional Court's relocation to Saint Petersburg?

TM: The relocation of the Constitutional Court is highly questionable. It directly breaches the provisions of the Constitution, not to say anything of the fact that nobody took the trouble to ask the opinion of the Justices of the Constitutional Court on this matter. A similar situation arose after the merging of East and West Germany in 1990, When the decision was made to place five upper German courts in five different cities. But when German upper courts were asked about their opinion on the idea of relocation, some of them rejected the idea, and nobody forced them to move. Getting back to the situation in Russia, I would point out that the relocation of the Russian Constitutional Court cost the country a fortune, and now the Court sits in such a fancy and luxurious place that almost encourages the Justices to behave nicely towards authorities. The situation was beautifully summarized by two German lawyers, Angelika Nussberger, who is currently on the European Court for Human Rights, and the political scientist Mommsen, who said that in Russia, a relocation outside Moscow’s Garden Ring effectively equals exile.  This is true: slowly but steadily, the Constitutional Court of Russia is becoming a sort of regional institution. Its relocation from the capital resulted in a considerable decrease of availability for both people and the media and also brought up huge organizational expenses. To say nothing of the fact that the traffic on the Saint Petersburg-Moscow highway has become really crazy. I assume that the relocation has also affected the prestige of the Constitutional Court, and this is a bad sign.

IMR:Were there any other changes in Russian legislation that affected the Constitutional Court?

TM: There were changes related to procedural rules, organizational issues, and the modification of the status of the officials of the Constitutional Court. These changes were also negative and resulted in a considerable decrease in the legal status of the Constitutional Court. First of all, the Chairman and Deputy Chairman of the Constitutional Court are now appointed, whereas before 2010, they were elected. This appointment happens without any electoral campaign, or any nomination of candidates or election materials. The Justices used to elect their Chairman and Deputy Chairman from three candidates, who secured the votes from their colleagues according to the results of previous preferential voting rounds. This procedure could involve up to three rounds, but the most important point was that Justices gave the leadership of the Constitutional Court to  people whom they trusted professionally and in whom they believed.

The situation, which was very favorable for the status of the Constitutional Court Justices, has been changed, and now appointment to the leadership of the Constitutional Court is part of the scope of powers for the Federation Council of the Federal Assembly of the Russian Federation. The composition of the leadership has changed as well. Prior to these changes, the leadership of the Constitutional Court included the Chairman, Deputy Chairman and Judge-Secretary (while “Judge-Secretary” may not sound fancy, his roles and powers were outlined in the initial wording of the 1994 Federal Constitutional Law). Now there are two Deputy Chairmen of the Constitutional Court, and their powers are determined by the Chairman himself. Another important change is the possibility of a lifetime prolongation of the powers of the Chairman of the Constitutional Court and the absence of an alternative in the form of the nomination of a candidate. Plus, the organizational activities of the Constitutional Court have also been changed. Now, unlike other courts, the Constitutional Court cannot independently determine the number and schedule of its personnel, even within the limits of its budget. The bicameral structure of the Constitutional Court, where cases were considered in two chambers consisting of 9 and 10 judges respectively and most important issues (including the interpretation of the Constitution) were considered in plenary sessions, was eliminated.

IMR: What are the most important results of all these changes?

TM: The recent changes resulted in the emergence of a melting pot, where all the cases are considered, however the earlier judgments made by the two chambers and in plenary sessions also had the same status. Today the Constitutional Court operates under much harder conditions, since the collegiality among judges has experienced considerable damage. Now Justices are incapable of examining all the cases brought forth for consideration, because any real discussion of all cases by all 19 Justices is impossible. So now the amount of trust we place in the ideas of the Secretariat of the Constitutional Court is considerable and, for obvious reasons, continuing to increase, since the Secretariat is now the main subdivision carrying the brunt of the work.  Unfortunately these changes can only decrease the quality of judgments.

IMR: It seems that under Boris Yeltsin's rule there were more judges joining the judiciary. What's the main difference in the way candidates for judgeship were selected for the Constitutional Court under Yeltsin's rule as compared to today?

TM: Of course, there are new judges appointed now, but this process has its specifics. In the Yeltsin’s times, there were sometimes 5 or 6 candidates nominated for one position. Today, there is always only one candidate, usually an alumnus of the Saint Petersburg State University, the alma mater of President [Dmitry] Medvedev and Prime Minister [Vladimir] Putin. This fact in itself doesn't constitute a reason to negatively assess a particular judge, but it's definitely a sufficient reason to negatively assess the existing system, where the main trend is to approve everything proposed by the leadership of the country.

IMR: What are the most important recent changes made to Russian legislation that affect the Constitutional Court?

TM: In 2010 the Federal Constitutional Law on the Constitutional Court was amended again, and  the federal constitutional justice obtained new features. The grounds for individual appeals to the Constitutional Court were limited. These changes have also affected the way other courts apply to the Constitutional Court. That's a very important point, since other courts may bring up the issue of whether the law they are about to apply in a particular case complies with the Constitution. It may look like a broadening of the scope of the Constitutional Court’s powers, but in fact it narrows the sphere of control over compliance with the Constitution, since such control belongs both to Constitutional Court and to the courts of general jurisdiction. Now the courts can easily refrain from analyzing the constitutionality of legislative acts and give no reason for applying to the Constitutional Court. Any doubts in the constitutionality of a certain piece of legislation are now enough. On the other hand, these new rules have increased the caseload in the Constitutional Court that makes it impossible for the Court to come up with a comprehensive and thorough examination of all the legislative acts it faces. Meanwhile, this could easily be done by other courts.

IMR: What do you think about the recent notorious legislative initiatives of Alexander Torshin?

TM: One of his bills affects the possibility to use constitutional justice for the benefits of other branches of power. At the same time, this bill reflects the misunderstood interests of the political elite, because here we are talking about the balance of the jurisdictions between the Constitutional Court and the European Court for Human Rights, which was placed in serious doubt by this legislative initiative. Torshin came up with the idea that Russia could refrain from the execution of its obligations under the European Convention until the Russian Federation’s Constitutional Court sustained the judgments of the European Court for Human Rights. It may look like a broadening of the scope of the Constitutional Court’s powers, but it reality it translates into a considerable limitation of the rights for Russian people to access legal remedies. Please note that the European Convention is mandatory for Russia and cannot be rejected, and the judgments of the European Court for Human Right made under this Convention cannot be rejected either. When Russia joined the Convention, it accepted the obligation to follow the European Court for Human Rights’ interpretations. And if this bill became law, Russia would violate the requirement of its own Constitution to follow international human rights standards. Other constitutional norms would be also violated, especially article 46, establishing the interminable right for individuals to access legal remedy. This bill actually creates the possibility for Russia to ad hoc reject its international obligations. While this bill was adopted in the first reading at the very end of June of 2011 and has now been suspended, it can easily get back onto the agenda. Torshin’s second bill envisions the establishment of a new supranational court in charge of the protection of rights and freedoms for Russian citizens. Torshin's idea is to set up a sort of parallel to the Strasbourg court for the countries of the Commonwealth of Independent States, and this idea brings up mixed feelings. On one hand, given the frequency human rights violations in Russia, an extra court providing legal remedy in such cases isn’t unnecessary. On the other hand, we understand the true intention of the authorities, which is to reduce the flow of appeals from Russian citizens to the European Court for Human Rights.

IMR: Can you comment on the forthcoming expert opinion regarding the second sentences of Mikhail Khodorkovsky and Platon Lebedev?

TM: The final opinion is ready. It presents the work of experts from various countries. Now we have all the opinions put together, and this huge text is being translated into Russian. It's a hard job, because we must not only give the documents to President Medvedev, but also come up with certain conclusions. We plan to present the final text of the combined expert opinions at the next meeting of the Council for Development of Civil Society and Human Rights with President Medvedev, which is scheduled for the beginning of December 2011 and hopefully won't be postponed. In case the meeting is postponed, we will do it some other way. It's crucial for us to both give the documents to the President and to make an oral presentation. The question of how the media can see this comprehensive document and possible publication of its full version is still pending.

IMR: How legitimate in terms of legality is the idea of Vladimir Putin returning as Russian President?

TM: Being a lawyer, I find this question very interesting. It's surely an issue for the Constitutional Justice since the power to interpret the Constitution is vested in the Constitutional Court. But it would be premature to come up with any comments or assessments before the Court considers this problem. A retired Justice, as any Justice of the Constitutional Court, is strictly prohibited from expressing opinions on matters that may become subject of consideration for the Constitutional Court, which is a guardian of the Constitution. But there are surely sufficient grounds to request an interpretation of the appropriate Constitutional provisions.