Evening Moscow, June 6, 1998
For Some People I was a Dissident and for Others-- the City's Fool
- Ernest Mikhailovich, you have been a justice of the Constitutional Court of the Russian Federation from the day of its appearance in 1991. Is there any age or educational qualification for the members of this body? And please tell us about yourself.
- Indeed, the federative constitutional law "On the Constitutional Court of the Russian Federation " specifies in Article 8 who exactly can become a justice of this court: a citizen of the RF not younger than 40 years old on the day of his or her appointment, with an impeccable reputation, a higher education in law, with 15 years of experience in the legal profession and with a proven high qualification in law.
As for my biography, I was born in 1934 in Leningrad and as a child lived with my family in Karaganda, Voronezh and Krasnodar. In 1958 I graduated from the Law School of the Moscow State University after which for several years I worked as an editor in a number of publishing houses that put out legal literature. Starting from 1966 I began working in the field of legal research and for many years was concerned with international law. My candidate's thesis was devoted to the normative activity of the International Labor Organization and my doctorate's thesis was about the relationship between international and internal law and the incorporation of international human rights protection standards in a national legislation. In this dissertation and in my books and articles I tried to prove, among other things, that an international treaty has greater legal force than a national law and that under certain conditions the former can directly regulate social relations. At that time (late 1970s - early 1980s) the soviet school of international law considered such ideas as seditious and that is why many of my colleagues considered me to be either a dangerous dissident or the city's fool. Nevertheless, I managed to defend by thesis.
Once I even tried to include this "dangerous" idea in a law. In 1978 I took part in the preparation of the draft law on international treaties of the USSR. Together with a group of associates we succeeded in including in this draft law a clause on the priority of international treaties. And it remained there till the last day of our work on this draft law. But on the last day a certain very influential nomenclature scientist (now he is a very active consultant of the Duma's leftist opposition) whispered to the Supreme Soviet Presidium official who was supervising our work : "You are insane! If you leave this clause in this law, tomorrow any dissident will be able to arrive in court waiving the texts of international human rights pacts before the judge!" The poor official was scared to death and immediately crossed out our clause .
By now life itself has solved this dilemma. It is absolutely obvious that international norms that protect human rights have greatly facilitated the democratization of our country. The generally acknowledged norms and principles of international law and international treaties signed by the Russian Federation have been acknowledged by the RF Constitution as an integral part of the country's legal system. In almost every other of its decisions the CC refers to international treaties on human rights. And each time when this happens I think about how lucky my scientific career has turned out: my ideas are being practically applied and I myself am participating in this process.
But lets us go back to the past. After the beginning of perestroika I started publishing my articles not only in scientific, but in the general press as well. These articles were devoted to legal and political subjects. I was also an active participant in the human rights movement and, in particular, in the work of the Moscow Helsinki Group and the Memorial Society. One of the most impressive and unforgettable recollections of that time are my several brief meetings and conversations with Andrei Sakharov who, incidentally, supported me as a candidate to become a people's deputy of the RSFSR from the Memorial Society during the 1990 elections.
However, I lost the election in the second round to Oleg Poptsov for which I am quite grateful to him.
In 1990-1991 I worked as an expert of the Constitutional Commission founded by the RSFSR Supreme Soviet for the preparation of a new constitution. Although this commission had not completed its task, many of our ideas and, firstly, the idea of human rights protection, were included in the RF Constitution of 1993.
At the end of October 1991 I was elected, among the other 13 justices to the first convocation of the Constitutional Court. I keep as a memento the ID of a CC justice # 001 which was issued to me by the Supreme Court not in honor of some kind of special services, but because of the first letter of my name. This started in elementary school where I was always the first to be called out by the teacher!
Since then a lot of things happen in the Constitutional Court, good, bad and tragic. But I was always supported by the feeling of being part of the great cause of creating a new and unique for Russia institute of higher justice. The mere fact of its existence after so many years of traditional lack of rights and arbitrary rule is amazing and allows us to hope for a better future for our country.
- One of the main cases of that period were the hearings on the constitutional nature of presidential decrees banning the CPSU (Communist Party of the Soviet Union). Please tell us about it. What is your opinion about the verdict and was it fulfilled?
- This was one of the most difficult and tiresome cases in the practice of the CC. It lasted from July till November 1992. Many people think that in regard to this case the CC failed to free the country from the totalitarian heritage and was unable to give a true definition of a party which for many decades oppressed a tremendous country.
I disagree with this opinion. In the main the CC confirmed the compliance of the above presidential decrees to the Constitution. The CC admitted that in the course of decades "the leading structures of the CPSU initiated, and the local party structures carried out a policy of repression toward millions of soviet people" and that "the leading structures of the CPSU and the Communist Party of the RSFSR have assumed governing functions thus preventing the normal functioning of the constitutional bodies of power" and that "the CPSU occupied a positions in the state system that was counter to the fundamentals of a constitutional order".
The Court came to the conclusion that "the anti-constitutional activities of the leading structures of the CPSU and the CP of the RSFSR exclude their restoration in their former form. Members of the CR RSFSR can only form new leading structures in full compliance with the requirements of the current Constitution and the laws of the Russian Federation and on equal conditions with other parties."
During the hearing hundreds of previously secret documents were publicized unveiling the numerous crimes of the communist party against soviet people and other nations.
However, in February 1993 the Second Extraordinary Congress of the Communist Party of the Russian Federation (CPRF) passed a resolution that restored the activity of Russia's communists, in other words, the former CP RSFSR.
Our law enforcement bodies are not in the least concerned about his fact. Among these are the General Prosecutor's Office and the RF Ministry of Justice whose duty is, according to the Law on public associations, to control legitimacy of the activity of such associations.
- Can the issue of banning the activity of the CPRF be brought up once again?
- The federal law on public associations specifies various degrees of responsibility for the violation of the Constitution and legislation - from a warning to a termination of their activity. Such cases are brought to general jurisdiction courts and not to the Constitutional Court.
- According to the federal constitutional law "On the Constitutional Court of the Russian Federation" the decisions of this court are obligatory for all representative, executive and judicial bodies. How is this guaranteed?
- The Court itself does not have adequate means for controlling the fulfillment of its decisions. We do not have an enforcement body, except for a bailiff who ensures order during hearings. The observation of our verdicts is based, firstly, on the high prestige of the court and on a respect by other branches of power of these verdicts and the Constitution. And apart from a handful of cases (of which I just told you) during the whole history of the Court this always worked.
However, article 81 of the law on the Constitutional Court provides that the failure to fulfill or an improper fulfillment or the prevention to follow a decision of the Constitutional Court shall cause responsibility in accordance with the federal law. Unfortunately, such a law has not yet been passed . Such a law that would guarantee a strict observance of the CC decisions must be passed.
- Considering that the requirements to a member of the CC are so high, was it possible to find such people in Moscow?
- There are only two CC members who come from Moscow and most of the other justices have lived and worked in the capital for quite a long time. Only 5 members are former Supreme Soviet deputies from other cities.
- We are talking, but you must be very careful because the law does not allow you to discuss matters that may become an issue at the Constitutional Court. In other words is the weather the only subject you can discuss?
- Of course we can discuss the weather, and as for the law on the Constitutional Court it indeed limits the justices in their subjects for discussion. You may torture me, but I will never tell you what I think about a case that will be considered by the court. And not only because the law prohibits this but also because I never know in advance how a case will be decided: I come to a final decision during the hearing.
But I am allowed to comment on the court's verdicts and even express my special opinion, of course, with due respect to the verdict even if I completely disagree with it.
- Why are there two chambers in the CC? And why is there an even number of justice in one of the chambers which means that the vote may be split evenly between ten people.
- The CC considers and decides cases both during plenary sessions and in the course of the sessions of each chamber depending on the significance of the cases. The first chamber consists of ten justices and the second - of nine justices. This was done with the aim of improving the effectiveness and capacity of the court. If during the first 18 months of its existence the CC considered only 19 cases at its plenary sessions, during the following three years (from the spring of 1995 till present) it has examined 80 cases. As for the even number of justices in one of the chambers, so far this has not led to any grave situations during the voting.
- How often do you act as the justice-speaker?
- Two or three times a year.
- How often is The Constitutional Court Herald put out?
- Once in two months.
- Have you ever considered the possibility of taking part in the weekly TV show Man and Law in which you would speak about what goes on in the CC?
- No, I haven't considered such an opportunity, but may in the case of a relevant proposal. Because I believe that every lawyer should take part in mass public education in the sphere of legal knowledge.
- What are the most common issues with which individuals apply to the CC?
The most common are such questions as appeals, social protection, the protection of housing and labor rights and the right for legal defense, etc. For example, in 1997 as many as 9,473 citizens applied to our court. Of course only a few were examined due to a number or reasons the main being the fact that most of these people should have applied to courts of a different jurisdiction.
However, the examination of appeals filed by citizens is, probably, the main area of our work and here the Constitutional Court acts as the nation's main human rights defended. Because when our court, following an appeal by a citizen, declares a law unconstitutional this leads not only to a second hearing of this citizen's case, but to an annulment of this unconstitutional law. This way the verdict of our court defends not only one given person but, perhaps, hundreds of thousands or even millions of citizens whose rights had been violated or could have be violated by this law.
Vladimir NUZOV
