Ernest Ametistov, LL. D,
Judge, the Constitutional
Court of Russian Federation
The Constitutional Court of Russia on the eve of new development and new test
Last time I spoke to your audiece a year ago, two months after my country passed trough long and grievious political crisis which was completed by the riot and bloodshed in Moscow in October of last year. Those days Russia was literally on the edge of civil war and all of us thanked God for saving from these awful prospects. I told you also about the fatal role which the Constitutional Court of Russia has played in the development of that crisis when this highest body of Russian justice was deeply involved into the political struggle between two branches of power - the Parliament and the President.
Nowdays the common situation in Russia as before is far from real stability though relatively more calm, at least in the central echelons of power. What are the most important features of this situation? What is to be expected of our near future? And what role may belong in this future to the Constitutional Court of Russian Federation? Here are the final questions to which I shall try to reply in this lecture.
But for the beginning let me rmind you the short history of the Russian Constitutional Court because this history is closely connected with the recent development of the Russian state on the whole.
The Constitutional Court of the Russian Federation was established in 1991 in the fremework of a comrehensive legal reform initialed by the democratic wing of the Russian parliament. It was absolutely new phenomen in Russian legal history which should supposedly to become an important step on the way to the state uling by law. Thirteen members of the 15 judges bench were elected the by the Congress of Peoples Deputies to limited life tenure (until age 65) with the remaning two seats to be filled later. After the nomination in November 1991, the judges elected the Chairman of the Court. Valery Zorkin - a former professor of the Police Academy - became the first Chair.
In accordance with the first Statute on the Constitutional Court (adopted on Jully 12, 1991), its jurisdiction included the examination of consitutionality in four areas: domestic legislation and international treaties which didn't not yet enter into force for the Russian Federation; judicial and administrative practice; political parties; and behavior (id est actions and decisions) of high officials of the Russian Federation, first of all the President and Vice President.
During the almost two years of the first period of its activity the Constitutional Court tried 29 cases including 19 on the constitutionality of legisalation, eight on individual complaints about the constitutionality of judicial and administrative practice and two on the constitutionality of the behaviour of the President.
It is difficult to appreciate synonymously the Cour's decisions adopted of all those cases.
In its actions on individual complaints concerning the judicial and administrative practice, the Court showed itself to be an effective and important suppoter of human rights and freedoms against the arbitrariness of the state. Actually it performed the task of liberation of the Russian law and practice from the vestige and remaints were preserved in the social field: in the labour law which was a mere remedy of the rugless exploitation of the workers under the conditions of the Compulsory labour; in the right of property which in reality served as an instrument of the expropriation of the ownership from the citizens in favour of the elimination of discrimination of workers on the ground of their age: the provisions of the Labour Code which permitted to fire workers only on this ground was ebolished and the relevant judicial practice was seased.
The Court stopped the practice of limited periods of time for consideration in the courts of law of the cases on the dismissal and remuneration for unlawful dismissal. It granted the access to the judicial protection from dismissal for the categories of public officials who were deprived of this right during many years. The Court made the State to pay citizens the compensations for the losses which they sustained as a result of the liberalisation of prices and inflation. These and other decisions in the field of human rights brought to the Constitutional Court the prestige and high esteem of the Russian public opinion. After more than 70 years of the Soviet history Russian people firstly to the trust in the courts of law and justice.
By its decisions in this field the Court contributed to the development of the legal consiousness in Russia contributed to the development of the legal consciouness in Russia - not only of citizens but also of the Law applying bodies. Thanks to its activity for the first time in the history of this country its Constitution started its transformation from a mere set propaganda slogans into a really effective legal document, a real means of protection of human rights and freedoms. The majority of the Court's decisions was implemented by all three brences of power - the legislative, the executive and the judiciary. But even in the cases when unconstitutional acts were not abrogated in due time, the law application practice was following the position of the Constitutional Cout. In these cases the courts of law found themselves facing a dilemma - to continue implementing act recognized as unconstitutional and thus violate the Constitution as the Suprime Law of the country. As a result, untincable in Russia things began to happen: under the influence of the Constitutional Court's decisions the courts of Law started to implement directly the norms of the Constitution while passing judgements on concrete cases. Now one may speak without any exaggeration of a true revolution happening in hardened minds of Russian - and actually Soviet - judges. One can understand the meaning of this phenomenon if to remember that most of them are still the same people who for decades worked in the conditions of so called "telephon law" when the supreme law for them was not the Constitution and even not the laws of the country but the latest directive of a neares Party boss or a ministerial instruction.
One more useful deed accomplished by the Constitutional Court in the course of consideration of the individual complaints was the constant references to not only the Constitution of Russia but also to its international obligations on the field of human rights protection. The thing is that the previous as the present Russian Constitution frants the priority to the international treaties of Russia over its domestic laws and permits direct application of the International Law standarts in the framework of the domestic legislation. The Court used this constitutioinal provision very often and it was also quite new phenomenon in Russian judicial practice which permits it to take a worthy place among the civilized nations of the world. Under the influence of the Constitutional Court the other courts of law also started applying step by step the international standarts in their decisions.
At last the practice of the Constitutional Cout in the field of human rights played the important role for the evolution inside the Court itself. During the consideration of the cases of such category the judges could agree on a certain position devoid of any political motivation and based solely on the law which did it really convincing. Practice related to human rights protection was a true school of unibased and highly skiled justice. It made a big difference from the practice pertaining to the separation of powers. Here the most of judges failed to overcame their political inclinations what led the Court after all to the unglorious end of the first period of its activity. And this is next topic of my lecture.
Theree were two main reasons of drawing of the Constitutional Court into the politics.
The first one was the very order of nomination of judges established by previous State on the Court: they were formally proposed by the political factions of the previous Soviet parliament - the Congress of People Deputies. Naturally each of these factions supported the candidates who corresponded to its political views. Their professional and moral qualities were secondare. Since the majority in the Parliament belonged to the communist and nationalist oriented factions the same majority was established in the Court too. This majority, with the Chairman of the Court in the head, even didn't conceal their political orientatio inspite of all ao them made the oath to follow only the Constitution, nobody and nothing else.
The second reason was the Constitution itself which served the legal basis for the Court's activity. This previous Constitution of Russia was adopted in 1978 - at the peak of the Brezhnev time - as "the Constitution of the developed socialism". It was full of solemn declarations and juridical functions and was never implemented in practice. But later, under the influence of perestroika and the victory over the August putch of 1991, some progressive amendments were introduced into the Constitution, including provisions for the separation of powers, human rights, the development of market economy etc. At the same time the provisions inherited from the communist past here preserved. As a result the Constitution was becoming more and more ambiguous and contradictory.
The most essential constitutional contradiction concerned the separation of power. On the one hand, the Constitution stipulated the separation of legislative, executive and judicial powers as the "unshakable ground" of Russian constitutional system. The other hand the same Constitution regarded the Congress of People Deputies as the highest body of the state power which had right to consider and resolve "any question under the competence of the Russian Federation". This constitutional provision was used effectively by the communist and nationalist opposition in its struggle against the President and his Government. Actually from the end of 1992 the Congress of people Deputies, where the opposition had the strong majority, started its "crawling" coup d'Etat against the democratic Government. Step by step it introduced into the Constitution the amendments with the sole porpose - to deprive the executives of their power and put them under total control of the legislatives. Thus the constitutional principle of the separation of power was totally destroyed.
Using the same contradiction of the Constitution the majority of the Constitutional Court together with its Chairman supported this activity of the opposition by all means. Beginning from the end of 1992 practically all the decisions of the Court on disputes bet ween the Parliament and the President were adopted in favour of the opposition and based more on political than legal grounds. They seriously worsened the situation in Russia. In particular, the decisions in the cases on the Communist Party and the National Front of Salvation - the extreme right nationalist organisation - made way for the most reactionary and subversive political forces that later initialed riots and bloodshed in Moscow in May and October 1993. In its turn the majority of the Court openly supported the mutineers and totally compromised itself.
All this story finished on October 7, 1993, when the President Yeltzin issued the Decree on the Constitutional Court in which he noted that the Court "transformed itself from the body of constitutional justice into the tool of the political struggle of great danger for the state". The session of the Court were suspended until the adoption of a new Constitution though all judges preserved their status, rights and garantees. Chairman Zorkin applied for retirement from his post did remain a judges. Here was the and of first period of history of the Russian Constituional Court.
Just after the reconciliation of the situation President Yeltzin fixed the new election to the Parliament and the referendum to adopt the new Constitution. Both events taken place on December 12, 1993. As a result the New Constitution was approved and the new Parliament - the Federal Assembly - was established. It includes two chambers: the lower chamber - the State Duma with 450 deputies and the Federation Council where all republics and other regions of the Russian Federation are respented.
The most important features of the new Russian Constitution are the following:
1) Supermacy of human rights and freedoms. The Constitution recognizes human rights and freedoms as the highest value. Their protection is the obligation of the State. The list of rights and freedoms and their formulation in the Constitution is in full accordance with the international standarts. The Constitution stipulated its direct application. This means that the constitutional rights and freedoms may be protected in the courts of law. Thus a new and very important step was made in the constitutional development of Russia. The point is that no Soviet constitution were ever applied in practice. Even the previous Constitution of 1978 with all its latest amendments mentioned about its application only by the Constitutional Court. And when the regular courts of law tried to implemented the Constitutional Court decisions. The new Constitution firmly permits its application by all the courts and other law applicating organs of the country.
2) Separation of powers. In accordance with the new Constitution the legislative, executive and judicial powers are fully independent. The president and the Government have more power than before and this is undoubtedly the impact of last year events. However checks and balances are provided to support the equilibrium. For instance the President may dissolve the State Duma if it doesn't agree with the candidature of the Prime Minister or expresses distruct of the Government. In its turn the State Duma may impeach the President if he commits a grave crime. The President may not repeal the laws of the Duma (he can only place the veto on the bill which can be overcame by the second qualified voting of the Duma) and the Duma may not repeal the decrees of the President. But the most important thing is that the competence of every branch of power is defined very precisely without any of those contradictions which were so typical for the previous Constitution. So this is the Constitution with which one can work!
3) Federalism. The Russian Federation includes 21 national republics and many other regions. All of them are equal constituent entities of subjects treaties with the Central Government about the separation of the competence. All these treaties are implemented in the Constitution which precisely stipulates three kinds of competence: exeptional competence of the central bodies, joint competence of the federal bodies and subjects of the federation and finally the exceptional competence of the subjects. As a result the subjects of the Federation have rather broad competence within the framwork of their power and may adopt their own constitutions or charters and even set up their own constitutional courts. But they have no right of secession because the Russian Federation "secures the integruty and inviolability of its territory".
The special provision of the Constitution (article 125) stipulates the competence and activity of the Constitutional Court of the Russian Federation. In this question the authors of the Constitution tried to derive the lessons from the past and to reduce to a minimum a possibility of any politisation of the Court. First of all they increase the composition of the Court: now it shall consist of 19 judges istead of former 15. Since there were elected only 13 judges it gives opportunity to add more six judges which supposedly may change situation in the Court in Favour of really independent and politically impartial justice. The presentation of the candidatures for the Court now is under the competence of the President who can take into acount the opinions of the independet communities of lawyers and judges, the Ministry of justice and other organisations. But the final decision to select the candidates depends on himself only. The nomination of the judges is in the competence of the upper house - the Federation Council. The judges will be nominated on the limited tenure - 12 years.
The competence of the Court is also changed. Before all the Court is deprived of the right to initiate any cases by its own initiative what was the formal pretext to involve it into the political conflicts in the past. It may not more to give the conclusions concerning behaviour of the high officials which also sreved in the past for the same goal. Instead it the Court, upon request of the Federation Council, shall issue a resolution on the observation of the established procedure for briging chrges of treason or of other grave crimes against the President.
In the other questions the competence of the Court even became more broad. Besides the examination of federal laws and other federal legislation and the legislation of the subjects of the Federation the Court now shall resolve disputies on authority: between federal State government bodies; between State government bodies of the Federation and same bodies of constituent entities. It also shall provide interpretation of the Constitution of the Russian Federation.
What is the real loss for the Constitutional Court as well as for Russian citizens it is the new competence of the Court of the individual complaints. Under the new Constitution such complaints may be brought to the Court not on the Law application practice - as it was before - but only for the purpose of verification of the constitutionality of a law which already was applied or may be applied in a concrete case.
Thus this decision of the legislator will hardly contribute to the strengthening of the protection of human rights by the Constitutional Court. First, the law application practice is taken out of its competence, and second - all sub-law acts - like governmental regulations, ministerial instructions and so on. But the experience shows that these are spheres where the most violations of the constitutional rights and freedoms happen.
While the draft Constitution was discussed the partisans of such decision afirmed tha people shall have right - in accordance with Article 46 of the Constitution - to appeal against the decisions and actions (inactions) of the state bodies and pfficials in the regular courts of law. And therefore all law application practice and above mentioned acts, other than laws, will be covered by usual judicial procedure. However it will take a long time before all the Courts will be able to overcome totalitarian mentality and start to consider the citizens claims against the State with required qualification and responcibility. But the main thing is that such courts have no competence to abrogate unconstitutional acts and thus their decisions would cover only concrete cases. This situation is uneasy.
The economic reform is moving rather slowly and meets on its was strong resistence of former communist masters of the country who still occupy many leading positions, especially in the regions. Though inflation and falling off of production is slowing down it is still rather high and many common people continue to suffer from high cost of living. While many stratas of society already adjusted themselves to the market economy and even flourish, the others - like pensioners, aged workers, employees of military industries, marginals - fail to do it. They feel nostalgie for the past and form the socal base for the communist and extreme nationalist opposition.
This opposition - the Communist party, the Agrarian party, the Liberal-democratic party of Zhirinovsky - again managed to get majority in the Parliament and now they do their best to prevent and block any initiatives of the President and Government. Still, unlike the last years, they use mostly legal forms of the struggle and place their hopes on forthcoming presedential election of 1996.
The democratic movement is rather passive and splitted. The different parties of democratic orientation waste their efforts for the acute criticism of the Government and each other. The democratic and independent mass media also concentrate their critical comments more on the President and the Government than on the opposition. Inside the Government and Presedential Administration also are contradictions. The raiting of the President fell down very low though it is still considerably higher than popularity of other leading politicians. The common situation aggravanted still more last time by the events in Chechnja.
In these conditions one may forsee that just after the start of its work the Constitutional Court can become the political target. So the first task before us is not to permit to involve us again into the political struggle and become a real centre of justice.
But the main ordeals will wait for Russia in one and half year during the Presidential election. Now the democrats and reformers have not many chances to win it. They can do it only if follow three indispensable conditions: 1) even small economic stabilisation, 2)democratic unity including the nomination of only one candidate for the presential post, 3) the skillfull election campaing to explain people what they already have and what the may lose in the case of the failure of the reformers. If the democrats will not fulfill these conditions Russia can face the real national catastrophe. Then the Constitutional Court can turn out to be a single island of stability, justice and protection of freedom and human rights. Only the future will show its ability to fulfill this hard task.
