Institute of Modern Russia

“First it was planned to have a celebration,
then arrests; then it was decided to combine both.”
—From the TV movie That Very Münchhausen

Russians love holidays. Religious and secular, our own and others’. We are happy to celebrate strangers’ holy days to the extent of our inherent internationalism and open-mindedness. We are also willing to offer an alternative national festival: for example, responding to the celebration of St. Valentine’s day with the celebration of the truly Russian Day of Saint Peter and Saint Fevronia). So we will celebrate the 20th anniversary of the Constitution of the Russian Federation in the Byzantine style, don’t you worry. The signs of this impending hoopla have long been visible, and the closer the day draws, the clearer they become. There are planned celebrations, and the pretentious conferences are already underway or about to begin. Even the president himself invited the heads of the departments of constitutional and legal disciplines to discuss with him important issues on the eve of the 20th anniversary of the constitution. And, tellingly, he did discuss.

My thanks go out to the kind of people who post transcripts of the president’s meetings. Thanks to them, details of some of these exciting events can be obtained from the original source, and not from the slanderous fabrications of “the fiery Hyenas” (a genius term once widely used in the press service of the Constitutional Court of the Russian Federation), published in certain unreliable media. Now, read your hearts out, please!

Of course, the pre-anniversary fuss didn’t go without constructive criticism from “professionals.” It was not quite the same as criticisms voiced this summer by a group of lawyers who were concerned with the permanent distortion of the constitution and warned in a public letter that Russia’s constitutional system is in danger. In the list of participants at the notorious presidential meeting, the names of the lawyers from this group, as well as the names of main signers of the letter are noticeably absent. Whether they were not invited or simply did not come is of no matter. What’s important is that what they had to say, the authorities did not want to hear. Pointing out sore points and examples of direct violations of the constitution in the legislative process were not on the agenda for the meeting. Such discussions would not be festive. It was desired that the constitutional law professors voice criticism of a fundamentally different kind. Details are in the transcript, and in general the critical remarks that were made sounded something like this: “You are not the greatest of all kings, but are simply outstanding, that’s all... Rumors of your holiness are exaggerated, yes, yes! You’re referred to as ‘the honorary saint’ undeservingly. You are a simple ascetic! A man of faith, a hermit, but not a saint.” In fairness it should be noted that these comments were not made by all who were present; judging by the list of participants, there were, among them, very decent people who chose to exercise their right to remain silent. Honestly, it would be better if some of the speakers had taken advantage of this right.

And then things got uncomfortable—a respectable lady that deigns to be a head of the department of constitutional law in one of the Russian universities, suddenly said, “The Americans have not changed their Constitution for two hundred years.”

So there you have it! Apparently in the United States there was no abolition of slavery (the 13^th Amendment, 1865), no suffrage for African-Americans (the 15^th Amendment, 1870), nor for women, regardless of race (the 19^th Amendment, 1920), not to mention the limitation of a president’s tenure to two terms (the 22^nd Amendment, 1951). As a well-known character Korovyev from Bulgakov’s Master and Margarita would say, “I congratulate you, citizen, you are a liar!” I’m sure you are teaching constitutional law wonderfully, and I congratulate your students on their fine education.

Well, bless her heart, this lady, this naïve human being, does not know that the U.S. Constitution has been amended. The speech of the other gentleman, the head of the Department of Constitutional and Municipal Law at Moscow State Law Academy, considered one of the best law schools in Russia, was much more dangerous. In the course of his lengthy speech, the above gentleman drew the president’s attention to the question of “the correlation of the international courts’ decisions with Russia’s Constitution,” reporting the following: “I personally agree with the position that we have found justification in our literature according to which Russia has the sovereign right to implement the decisions of international courts in a manner not violating the language of the law and the Constitution’s spirit.”

One of the instigators of this position is the Chairman of the Constitutional Court of Russia (CC), Valery D. Zorkin, who on this occasion stated, “Every decision of the European Court [of Human Rights] is not only a legal but a political act. When such decisions are made for the benefit of protecting the rights and freedoms of citizens and the development of our country, Russia will always strictly comply with them. But when certain decisions of the Strasbourg Court are controversial in terms of the spirit of the European Convention on Human Rights [ECHR] and affect national sovereignty directly, and our fundamental constitutional principles, Russia has the right to defend itself against such decisions. The correlation between the decisions of the Russian Constitutional Court and the European Court of Human Rights must be addressed through the prism of the Russian Constitution.”

This text, of course, is wonderful from the standpoint of casuistry, in which Valery Zorkin is glorious, and in terms of emotional intensity. But I have a few questions. On what basis, for example, does he argue that every decision of the European Court of Human Rights (ECtHR) is not only a legal but a political act? It is understood of course that Zorkin is drawing on the experiences of the Constitutional Court, which in 1992 handled the politicized case of the Communist Party of the Soviet Union, even though paragraph 3 of Article 1 of the Russian Soviet Federative Socialist Republic (RSFSR) Law “On the Constitutional Court” established in 1991 an outright ban on the consideration of political issues. In order to circumvent this prohibition, in April 1992, the then-Constitution of the RSFSR, which had remained in force since 1978, was amended with article 165.1 of the constitution, establishing, in particular, the right of the Constitutional Court to adjudicate on the constitutionality of political parties and other public associations. But the ECHR, naively, never dreamt that the Russian Constitutional Court might consider the ECtHR’s decisions as political acts.

My second question: I'm sorry, but who will identify the questionable decisions of the Strasbourg Court in terms of the spirit of the European Convention on Human Rights that his honor the judge Zorkin refers to? And based on what criteria? How can you establish which decisions of the ECtHR invade vilely on our national sovereignty and our fundamental constitutional principles? I have a bad feeling that this definition shall be applied to the rulings made against the Russian Federation. Alexander Torshin’s famous bill, which deals with the correlation between the Constitutional Court’s jurisdiction and the European Court of Human Rights, was adopted quietly in the first reading by the State Duma in 2011 and has been shelved ever since. And at any moment this bill can be called upon and snatched from its sheath like a dagger.

The basic idea and, consequently, the danger of this bill is that it permits Russia not to fulfill its obligations under the European Convention on Human Rights and Fundamental Freedoms, as long as the CC disagrees with the decisions of the ECtHR. At the same time, the European Convention is necessary for Russia and cannot be defied, just as it cannot be defied by the ECtHR’s decisions, which are handed down on the basis of the convention. Part 1 of Article 46 of the European Convention states that “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.” And when Russia joined the convention, it accepted the obligation to follow the interpretations of the ECtHR and execute its decisions. Russia’s denial of the necessity of following the provisions of the convention and enforcing the decisions of the European Court of Human Rights will mean a violation of its own constitution insofar as it establishes Russia’s commitment to following the principles and norms of international law and the international treaties of the Russian Federation (Part 4 of Article 15 of the Constitution of the Russian Federation). In short, the position espoused by Zorkin and those who agree with him is more than questionable from a legal point of view, especially when coming from the mouths of people who hold degrees in jurisprudence.

The closer the joyful day of the anniversary draws, the more new and interesting ideas arise about what exactly should be done with the constitution. Torshin and Zorkin’s proposals are already stale, having first been put forth a couple of years ago. But there are quite recent, original ideas, too. The representative of the Federation Council in the Constitutional Court, Mr. Alexey Alexandrov, distinguished himself at the latest anniversary conference (judging by media reports). He fought against Article 13 of the constitution, which relates to the foundations of the constitutional system in Russia and provides that no ideology can be established as a state-sponsored or mandatory ideology. Mr. Alexandrov objected to this: no such ugliness, supposedly, is happening anywhere in the world. He proposed removing this worthless ban from the text of the constitution.

It’s a sad picture: on the one hand, the entire country is preparing to celebrate the 20th anniversary of the Supreme Law of the Land, under which it lives happily. On the other hand, first here and then there, people are proposing to remove from its text the foundational principles of the country’s constitutional order, while others make veiled statements calling for defiance of the constitution’s direct instructions.

On the eve of its anniversary, the constitution has begun to be treated as a fetish, while we ignore its real content. All this is highly reminiscent of a scene from the wonderful movie That Very Münchhausen, in which Baron Münchhausen’s hometown is preparing to mark the anniversary of his death. The appearance of the living Münchhausen causes confusion, which culminates in a brilliant line: “Tomorrow is the anniversary of your death. Do you want to spoil our holiday?” Münchhausen himself, especially appearing suddenly alive, was of no use to anyone, and no one was interested in him. He was needed as a fetish, as a symbol, as a pretext for a magnificent celebration. Something similar is happening with the Russian Constitution, which for many is not valuable in itself, but only as a cause for celebration.