`Dr.Ernest Ametistov,
Justice of the Russian Federation
Constitutional Court
THE CONSTITUTONAL COURT OF THE RF AND THE PRESS
(seven years of experience in media relations)
Within the framework of the subject of this workshop we should concentrate on two basic issues:
First: the role of the RF CC in ensuring the liberty of speech and the liberty of the press.
Second: the role of the media in reflecting the work of the RF CC and also the relationship between the RF CC and the media.
1. Although the protection of constitutional rights and freedoms is the priority area in the work of the RF CC (out of more than 100 cases that the RF CC has considered since the beginning of its activity in 1992, almost 60 were directly or indirectly linked to this question), so far the RF CC does not have much experience in the protection of the freedom of speech: only two hearings were devoted to this problem (both took place in May 1993).
The first case was submitted by a group of RF people's deputies and the editorial board of the Izvestiya (News) newspaper and contested the compliance with the Constitution of the RF Supreme Soviet decree of July 17, 1992 "On the Izvestiya newspaper". This decree was issued in connection with the fact that the editorial board of this newspaper (which until August 23, 1991 belonged to the Presidium of the USSR Supreme Soviet) established a new independent newspaper with the same title. The decree was directed toward the liquidation of such a newspaper.
The RF CC declared this decree contradictory to the Constitution of the RF due to various grounds including the pressure exerted on the newspaper that hindered its existence as an independent component of the mass media and, thus limiting the freedom of speech and the freedom of the press. This protected the independent nature of one of Russia's most prestigious and democratic papers.
The second case was submitted by a group of RF people's deputies who contested the adherence to the Constitution of the of the decree issued by the Congress of People's Deputies on March 29, 1993 "On measures directed toward ensuring the freedom of speech at the government television and radio agency and in information services". This decree terminated the activity of a number of radio and television management bodies established in accordance with presidential decrees and, which is most important, provided for the formation by government representative bodies of "supervisory boards" that would insure the freedom of speech at government television and radio companies. The decree also established that the government representative bodies were to act as co-founder of government television and radio companies. This meant that counter to its progressive orientation, the decree led to the actual monopolization of government radio and television by government representative bodies, i.e., the Soviets of People's Deputies, thus allowing them to directly interfere in the activity of the mass media.
Unfortunately, in this case the RF CC did not act as a consistent defended of the freedom of speech and considered the decree to be in line with the Constitution. One of the reasons of this position was the fact that at that time the legal status of the supervisory boards was still unclear and they were yet to be formed. In reality such supervisory boards had already appeared in a number of regions and began to actively interfere in the affairs of television and radio companies forcing their own candidates for executive positions, imposing their own shows and programs and introducing unconcealed censorship.
However, these boards did not have a chance to launch out thanks to the disappearance of their sponsors, the Soviets of People's Deputies.
The quite modest practice of the RF CC in the sphere of the mass media does not mean all is well with the freedom of speech in Russia. This is confirmed by the numerous attempts of the State Duma to revive various form of supervisory boards which, luckily, have all been in vain to date; the use by regional authorities of methods of economic pressure on independent media outlets; and suing journalists for assailing a politicians honor an dignity which has become a quite wide-spread practice.
Such limitations of the freedom of speech result from the fact that these cases are considered not on constitutional level, but by general jurisdiction and arbitration courts. However, despite the inconsistent nature of this practice it does tend to protect the mass media from encroachments on their freedom and independence.
2. As for the second issue -- the relationship between the RF CC and the mass media, I would like to note the following. From the very start the RF CC was faced by the dilemma of whether its should be closed or open for the press.
I must admit that we solved this problem by trial and error and by confronting many difficulties along the way. Many of our approaches resulted both from our inexperience in this area and the specific historical, legal and political factors.
For Russia with its centuries-old traditions of state arbitrary rule, the lack of democracy and the prevalence of the rights of force over the force of the rights and even the appearance of a constitutional court as the last and final court to deal with disputes between different branches of state power or between the state and a citizen was a new and unheard of phenomenon. I remember very well what happened after the first verdict of the RF CC according to which the decree of the President "On the formation of a Ministry of Security and Interior of the RSFSR" (January 1992) contradicted the Constitution. This decree was directed toward a merger into one ministry of two most mighty and repressive agencies. The entire country was holding its breath and wondering whether the President would obey our decision.
And he did! The president of a major power who had at his disposal a multitude of means for enforcing his will had complied with the will of thirteen little known lawyers! Such a thing had never before happened in Russia and, naturally, had attracted the most keen interest of the public and of practically the entire mass media in the RF CC. And this interest became stronger with each new case.
Of special interest to the media was the "Communist party lawsuit" which lasted from May through November 1992. The press, radio and television commented on practically every word of not only the participants in the hearing, but the CC justices as well. The biographies of the justices were publicized as were their positions in regard to the issue. The CC justices became known to the whole country.
Thus we were "tempted by popularity" and I must admit that not all of us had sustained it. What was latter justly called the "politicization of the CC" started during this lawsuit and with the active support of the mass media. But can the media be blamed for this? Of course not! This would be the same as to blame a mirror for someone looking into it too often.
The more so when starting from the end of 1992 the RF CC began to plunge into the politically charged life of the country, in the conflict between the executive and representative branches of power which actually meant a struggle between democratic reforms and old-time opposition. The justices openly split into a majority supporting the opposition and a minority that had taken the side of the reformists. When the confrontation between these two groups turned into a life and death struggle, the justices themselves began to actively use opposing mass media groups with which they had already established stable relations. When, for instance, in March 1993 the Congress of People's Deputies once again demanded the impeachment of President Yeltsin on the basis of a decision by the RF CC its chairman Zorkin came out in support of impeachment and spoke at press conferences that were broadcast throughout the country. And when Justice Ametistov was not allowed to express his opinion at the same congress, he made it public through the Izvestiya newspaper and in the popular TV show Vzglyad (Outlook). And this happened more than once.
The results of the political and constitutional crisis of 1993 are well known: the sad events of October of the same year after which the work of the RF CC was paralyzed for a year-and-a-half. The justices had learned their lesson and had drafted a new law on the Constitutional Court, an extremely rigid one forbidding the justices to initiate suits and largely limiting the possibility of public activity. Gradually the situation settled down and in the spring of 1995 the RF CC resumed its work on the basis of a renewed legal framework and with new members added. It is still open and accessible to the public and the mass media, however within the strict limits of the Law of the RF CC. The justices do not have the right not only to join any political parties, but even take part in political actions, conduct political propaganda, participate in elections campaigns, be present at congresses and conferences of political parties and movements, or engage in any other political activity. They cannot publicly express their opinions about issues that may be considered by the RF CC until a decisions made on this issue. The RF CC chairman can only make statements on behalf of the court that have been authorized by the court.
Of course these limitations have influenced the relationship between the RF CC and the press. However, most of the journalists have come to understand their own possibilities and the possibilities of the RF CC justices. Bot the RF CC press service and the justices themselves work with journalists proceeding from the following principles:
Goodwill: answer all journalists' questions even the most senseless ones in a polite and calm manner and with humor; never become agitated and always explain what we have the right to discuss and what we do not have the right to discuss. Give the journalists with assess to all available materials and texts of passed decisions with explanations. Hold press conferences and briefings on a regular basis. Publish press releases on the case to be considered by the court: before the hearing and after.
Lack of conflict: respond calmly to any primitive or inaccurate publications about the court's decisions or activity; use official refutations only as the last resort; the basic approach is to speak to the journalist and explain his or her mistakes or misunderstandings and, thus, the next publication will more accurate. Respond calmly to any aggressive political attacks from the communist or nationalist opposition. Use a diversified approach: if this comes from a well-known State Duma deputy or a leader of a State Duma faction, the RF CC might even respond (as in the case with the reply to attorney Ivanov); however, when the source of threats and slander is a small dirty newspaper to react to it means to expand its circulation and popularity (for example, an article printed in the newspaper Zavtra(Tomorrow).
Legal mass public education: the justices and people working at the RF CC continue to appear in the press, on TV and radio where they explain the policy and decisions of the court and speak about its terms of reference and grounds on which citizens may apply to the RF CC.
Long-term media relations: the RF CC has two types of journalist accreditation: one-time and permanent. It is enough to make a phone call one day in advance and receive a one-time accreditation. Permanent accreditation is granted after a journalist writes about the court for three months. During the years of the RF CC existence a team of highly professional journalists reflecting its work in he media has taken shape and includes, among others Nikitinsky, Katanian, Borin, Feofanov, Kara-Murza, Parkhomenko, Venediktov, Mirzoyev. The subject of the RF CC gave rise to the foundation of the Court Reporters Guild which unties the best law journalists of the country who write proceeding from the Guild's ethical principles.
As of today the RF CC is the most open and accessible juridical organizations. Is this good or bad? There might be different answers depending on different concepts of the role of the court in society. But the open and accessible nature of the RF CC is a reality which has resulted from a specific historical situation in which is was established and in which it acted, as well as from its own policy in regard to the mass media.
