The State Duma last week admitted for consideration a bill proposed by the President whereby the Chairman of the Constitutional Court would be nominated by the head of state and confirmed by the Federation Council. If the amendment is adopted, Russia will lose its last government body that is not part of the vertical power structure.
According to the document submitted by Dmitry Medvedev to the State Duma on May 8, the Chairman of the Constitutional Court (CC) and his two deputies are to be appointed by the same procedure as the heads of the Supreme and Higher Arbitration Courts, i.e. by the Federation Council confirming the candidates submitted by the President. CC judges, like their colleagues from other higher courts, are also nominated by the head of state and confirmed by the upper house of parliament. However, since its creation in October 1991, the CC has been the only court in Russia whose leaders were elected by secret ballot by the judges themselves.
Predictably, the presidential initiative met with a mixed reaction. The State Duma resolutely supported the amendment, citing the need to have a uniform system of appointments to the judiciary. The opposition unanimously criticized the bill, declaring that it would "make the CC more dependent on presidential power" and "further strengthen the authoritarian regime." However, the public discussion failed to touch upon the question of why Mr Medvedev, who seems to be eager to be seen as a liberal, should have proposed such a patently anti-liberal bill.
Dmitry Medvedev himself has yet to answer that question. Nor is the answer contained in the rider to the law. As members of the CC staff wistfully joked during the conversation with Vlast, this was one of those rare cases when "the explanatory note does not explain anything." However, the essence of the amendments does not need to be explained; the Kremlin is seeking to facilitate the process of appointing its own people to leading positions in the CC. The current procedure does not guarantee that all such appointments are "correct". One salient example was the election, contrary to the Kremlin's wishes that previous chairman Marat Baglai's term be extended, of Valery Zorkin as the head of the CC in 2003.
There is one noteworthy detail. Although under the law On the Judiciary System the President needs the approval of the Higher Judge Qualification Board to introduce candidates for Chairman of the Supreme Court and the Supreme Arbitration Court at the Federation Council. and although the appropriate chairmen propose candidates for their deputies themselves to the head of state , the new law does not contain such requirements with regard to the CC. In other words, whatever the advocates of the "uniformity of the judiciary system" may say, the President will find it easier to appoint the head of the CC than the heads of the other courts. He will not have to seek the opinion of the judicial community or take into account the preferences of the incumbent chairman.
The opponents of the presidential initiative have no doubts about the motives behind the decision. A CC judge, speaking on condition of anonymity, attributed the the new amendments to the "desire of the Petersburg elite to be assured that the Chairman of the CC is the person it wants." Elaborating on this thesis, Boris Nadezhdin, a member of the Federal Political Council of the Right Cause party who knows the CC's work well, said that "Medvedev simply has another candidate for the post of the head of the court, so he has decided to change the constitutional law with that particular person in mind. The same happened in 2001, when Putin amended the law on the CC to extend Baglai's term".
At the same time, it is impossible not to notice that the new initiative is in stark contrast with Medvedev's proclaimed commitment to "overcome legal nihilism", and his constant calls to strengthen judicial independence. In fact, at the same time as the above amendments, the President submitted a bill that would abolish a three-year probation period for federal court judges and thus genuinely strengthen court independence. The new bill, however, may erase all the President's seemingly democratic initiatives, both present and future.
It turns out that in order to appoint his own man as the head of the CC, Dmitry Medvedev is prepared not only to sacrifice the image of a liberal president that he seems to be cultivating, but аlso to antagonize the CC judges, who in recent years have not infringed on the Kremlin's fundamental interests. If anything, on all the fundamental issues, such as cancelling the popular elections of governors, the CC invariably handed down rulings that suited the executive branch rather well. Now the loyalty of judges may be put into question. It is a measure of their discontent that, in an unprecedented departure from usual CC practice, one of the most experienced judges, Gadis Gadzhiyev, wrote an article sharply criticizing the President's initiative, thus violating the prohibition on publically discussing issues that may come before the court. Even in 2007, when a very painful decision was made to move the CC to St Petersburg, Judges did not take such liberties .
There are two reasonable explanations for the apparently illogical behaviour of the head of state. First, Mr Medvedev is no different from Putin and, for all his democratic rhetoric, can just as easily depart from democratic principles if it is necessary to solve the tasks that he considers important for his own interests. Second, the President simply could not have acted otherwise because he is bound by the obligations of the "tandemocracy" system. In other words, the next head of the CC should be not Medvedev's man, but an appointee of Putin or the people around him, and the President is silent precisely because he cannot and does not want to justify others' dubious initiatives.
Some commentators have not ruled out a more exotic explanation, which says that Dmitry Medvedev will himself head up the CC after yielding the post of President to Vladimir Putin in 2012. Some CC judges give credence to this explanation. One Constitutional Court judge, speaking anonymously, told Vlast that the post of the head of the CC "may not be a bad job for a top-class lawyer leaving the post of Russian President." This version is confirmed by mathematical calculations: Zorkin's powers will expire in February 2012, less than a month before the new presidential election, and in another year the current chairman will in any case retire because he will reach the age of 70, the limit for a CC member.
The main motive behind the decision was to facilitate appointing CC judges, and thus bring into the vertical power structure the only government body that has up until now been outside that structure. However, a whole range of other reasons may also be behind the new initiative.
First, some in the Kremlin and in the Ministries would simply like to punish judges for being unpardonably freethinking. While remaining loyal to the Kremlin on matters of principle, the CC, especially in the last twelve or eighteen months, has repeatedly infringed on the interests of the executive branch on less significant matters by ruling in favour of citizens who challenged the state. This invariably irritated the President's representative at the CC, Mikhail Krotov.
One telling indicator of Mr Krotov's annoyance was his reaction to a recent CC ruling that declared the practice of courts declaring citizens legally incapable in absentia unconstitutional. "The CC has set out on a voyage without a compass or a map. What the resolution says is not in the law. These are simply juridical fantasies," said Mr Krotov in an interview with Kommersant, claiming that the court's decision reflected its ambition "to be the most democratic court in the world." Thanks to the presidential amendment, the CC will cease to be "the most democratic," at least as far as how its governing bodies are formed.
Secondly, the change in the procedure of appointing the CC leadership may have less to do with the figure of the future chairman than with the tasks he will have to face in the near future. For example, lawyers representing Mikhail Khodorkovsky and Platon Lebedev have already said they were ready to challenge in the CC some legal norms that made it possible to initiate a second trial for their clients. The Kremlin would feel much more comfortable if that appeal to the CC were handled by a new leader, whose loyalty to the authorities would be beyond doubt. The position of the head of the court, who would be appointed according to the new procedure, would inevitably affect the positions of his colleagues because it will be perceived not as his personal opinion, but as a reflection of the Kremlin's official stance.
Thirdly and finally, the possibility cannot be ruled out that the executive branch sees the current "harmonization" merely as the beginning of a new large-scale judiciary reform. For example, the chief counsellor of the Federation Council Legislative Committee, Yelena Vinogradova, believes that the introduction of the amendment may be a "experiment undertaken before a more radical reform of the judiciary system," which "tests the reaction of the European community and the position of the CC itself."
This has led some commentators to recall the idea of creating a "supercourt", which was very popular in the media in 2003-2004 when representatives of the executive branch first floated the idea of moving all the supreme judiciary bodies to Petersburg. At that time, rumour had it that the Kremlin planned to unite all three of the courts into one powerful body which could be headed by Vladimir Putin after the end of his second presidential term. These predictions did not come true at the time, but there is no denying that becoming the head of such a "supercourt" would be an adequate alternative to an outgoing president's (be it Putin's or Medvedev's) previous job, in contrast to, for example, the job of Constitutional Court Chairman in its present form. This is all the more true in light of the fact that all it would take would be to amend several articles of the Constitution which, unlike in 2004, is no longer treated as a sacred cow.
Apart from everything else, the creation of such a court would be in line with the practice of leading Western countries. For example, in the United States, the Supreme Court is the only body that can cancel any decisions of the executive and legislative branches, and its chief justice has a higher status than the President because, unlike the latter, he is appointed for life.
However, if such a system were to be introduced in Russia, it would be further proof that the Russian authorities prefer to adapt Western democracy to Russian conditions and borrow isolated legal norms irrespective of their logical connection with other provisions.
That is why in Russia the American concept of presidential power has been combined with elements of parliamentary democracy, in which the Prime Minister is confirmed by parliament. The resulting power system is neither fully presidential nor fully parliamentary. The same duality would inevitably arise if a supercourt were to be created. On the one hand, the authority of that body, especially if headed by a former president, would increase dramatically. On the other hand, considering that not only ordinary Russians but also many government and municipal bodies are used to ignoring court rulings, the mere fact that the judiciary system was headed by the former president would not change that attitude overnight. The functioning of that system would be reminiscent of the film "The Boss of Chukotka", in which an American merchant sells to the local Chukchi a gramophone horn, which stubbornly refuses to produce any sound because it has no turntable gramophone itself.
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One member of the CC told Vlast anonymously that the post of the head of CC "could be a good job for a top-class lawyer leaving the post of Russian President."
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The Constitutional Court: guardian of citizens' rights
Since January 1, 2008, the Constitutional Court (CC) of Russia delivered rulings on 19 cases. Of the 11 civil law suits, 7 were upheld. Below are some of the more remarkable rulings.
On May 27, 2008 the Court upheld the complaint of the head of the Educated Media Fund, Manana Aslamazyan, declaring the provisions of Part 1 of Article 188 of the Criminal Code (Contraband) to be unconstitutional. In January of 2007, Ms Aslamazyan, arriving at Sheremetyevo Airport from a trip to Paris and failed to declare 9,550 euros (about 330,000 roubles) and 5,000 roubles, which was more than the $10,000 allowed to be brought into the country without a declaration. She was charged under Article 188, which carried a prison sentence of up to five years for taking large amounts of currency (more than 250,000 roubles) across the border without a declaration. In line with the Criminal Code, the entire undeclared sum was considered. At the same time, failure to declare currency is also an administrative offense punishable by a fine of 1,000 to 2,500 roubles. In its ruling on the case, the CC stated that the provisions of the law were incorrectly worded, because one and the same act could be treated both as a criminal and as an administrative offense. An offender could be imprisoned for five years even for a very slight excess of the allowed sum. The court explained that Article 188 should apply only to those who exceeded the allowed sum by more than 250,000 roubles.
On July 16, 2008 the CC ruled in favour of businessman Vladimir Kostylev, thus declaring unconstitutional the provision of Article 82 of the Criminal Procedural Code on the custody of evidence. In November of 2005, the Moscow-Smolensk Transport public prosecutor's office, as part of the case concerning smuggling helicopters, declared a Bell-407 helicopter owned by Kostylev, who had nothing to do with the investigation, to be evidence. On June 9, 2006 the helicopter was sold under Article 82 of the Criminal Procedural Code, which allows the investigator to sell the evidence if its custody is difficult or too expensive. The businessman received no compensation. In its ruling, the court noted that impoundment of property without a court ruling was admissible only temporarily and only without stripping the citizen concerned of ownership rights.
On July 18, 2008, the court upheld the complaint of Viktor Mikhailov, the owner of a filling station in Kursk. In 2006 he was fined 500 roubles for infringement of requirements concerning the quality of petrol, whereupon he was charged 12,100 roubles to pay for the tests that revealed that the fuel fell short of GOST standards. The CC thus declared unconstitutional the law On Protecting the Rights of Legal Entities and Individual Entrepreneurs in the Process of State Control (supervision), which allowed businesspeople to be charged to pay the cost of expert tests that revealed the infringements.
On February 27, 2009 the CC ruled in favour of St. Petersburg citizens Pavel Shtukaturov and Yulia Gudkova, and a Moscow Region inhabitant Maria Yashina, thus declaring unconstitutional some provisions of the law that allowed courts of law to declare a citizen to be legally incapable in absentia. The ruling also declared unconstitutional Part 4 of Article 28 of the law On Psychiatric Assistance and Guarantees of Citizens' Rights in Rendering the Same, which allows extrajudicial confinement of people in psychiatric hospitals. The plaintiffs were declared legally incapable by courts of law on a petition of their relatives. None of them had been notified of the court session and its ruling. They learned that they were legally incapable only several months later, after the deadline for challenging the ruling had run out.
Alexandra Dadasheva
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The amendment could be "experiment undertaken before a more radical reform of the judiciary system" designed to "test the reaction of the European Community and the position of the CC itself".
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Supreme, appellate, constitutional
Once Dmitry Medvedev's proposals are accepted, the supreme judiciary power in Russia will become less European and more American.
The United States of America
The Supreme Court in the United States is simultaneously a federal supreme court and a constitutional court that has the right to interpret the United States Constitution. Its ruling on constitutionality of certain actions or laws is final. The court has nine members: the Supreme Justice of the United States and eight Associate Justices of the Supreme Court. All the Justices are nominated by the President and confirmed by the United States Senate. The term of their powers is defined in the United States Constitution as "during good Behaviour
In fact this means tenure for life: a Supreme Court justice can be dismissed only if an indictment against him is carried into effect.
Germany
In accordance with the German Constitution, the country has a Federal Court (the Bundesgerichtshof), a Supreme Court for Criminal and Civil Cases, and separate courts in different areas: administrative, tax, social and labour. There is also the United Senate of Supreme Courts (which convenes only if one supreme court challenges the rulings of another). The Federal Court judges are elected by the Electoral College (16 justice ministers of federal lands and 16 persons elected by the Bundestag) and confirmed by the country's president. The federal judges retire at 65. Finally, there is the Federal Constitutional Court (the Bundesverfassungsgericht), which has the right of final interpretation of the country's constitution. That court consists of two senates elected by the two houses of parliament. The Court chairperson is elected by the Bundestag, and his deputy by the Bundesrat. The Court has 16 judges elected for a term of 12 years, with the possibility of re-election for another term. The judges retire at age 68.
The Netherlands
The Supreme Court consists of 53 persons. The court members are appointed by the Monarch from amongst candidates proposed by the Parliament, which in turn must chose from amongst a list of candidates proposed by the Supreme Court itself. The judges are appointed for life, but must retire at seventy (like all the other judges in the country). In accordance with the principle of the sovereignty of parliament, the Supreme Court has no right to examine the country's laws for constitutionality.
Thus, in the Netherlands there is no situation in which it is permissible to interpret the Constitution.
Italy
The highest court is the Supreme Appellate Court, which consists of 300 magistrates. Constitutional supervision in Italy is exercised by the Constitutional Court of the Italian Republic, which has 15 members. One third are appointed by the President, one third are elected by Parliament and one third by judges of trial and administrative courts. The Court Chairman is elected by the members by secret ballot. The court members serve for nine years and may not be elected or appointed again.
France
The highest court for criminal and civil cases is the Appellate Court consisting of 125 judges and so-called magistrate judges. The supreme constitutional supervision body is the Constitutional Council consisting of nine appointed members and all the former presidents of the country (provided they are not engaged in politics). A third of the court members are appointed by the country's President, another third by the chairman of the National Assembly and the rest by the Senate Chairman. The appointed judges serve for nine years and may not be re-elected. The Council Chairman is appointed by the President of the Republic.
Great Britain
At present, the highest court in the land is the House of Lords, whose members are appointed by the Monarch upon the recommendation of the Government. Beginning in October of 2009, the Supreme Court of the United Kingdom will take power and assume the duties of the High Court. The first Supreme Court will have 12 judges who are appointed for life. The first Supreme Court will consist of so-called Common Lords of Justice, i.e. professional judges from the House of Lords who are currently serving. Subsequently, when vacancies appear, judges will be appointed by a commission consisting of the chairman and deputy chairman of the Court, as well as representatives from the Judicial Appointments Commissions of England and Wales, the Judicial Appointments Board for Scotland, and the Northern Ireland Court Appointments Commission. The Chairman of the Court will be elected by the court members.
Dmitry Kamyshev; Anna Pushkarskaya