The Legal Bulletin # 28 (119), August, 1995
Ernest Ametistov, Justice of the Russian Federation Constitutional Court:
"I DREAMED ABOUT FREEDOM ALL MY LIFE"
Have you noticed lately how many nervous, grumbling and irritable people there are now in Russia? Almost everyone is complaining, criticizing or yelling. And no sign of trust, hope, to say nothing about love to anyone, be it the neighbor or president. Everything seems so disgusting: plunder, violence and corruption are everywhere. Our people, annoyed by the terrible "outburst of democracy", fail to realize that a legal state is now being built in our poor and unfortunate country. But is this really happening? Where are the weak sprouts of such a legal state? Or this is only a topic for small talk? Our correspondent addressed these questions to competent lawyer.
We began our conversation with an argument. The usually laconic and reserved Dr.Ernest Ametistov, Justice of the RF Constitutional Court (I have known him for many years in the various positions he occupied) lost his reserve after my first question.
- Ernest Mikhailovich, should law be moral? The Roman used to say: let the world collapse, but justice shall triumph. But our people are filled with a feeling of injustice and lack of rights.
According to the rules of good manners accepted now by Russian intelligentsia and the mass media, including democratic, I should agree with you instantly and continue: "Yes, indeed, life is terrible, the system of justice is ruined and the law are dead." But if you may excuse me, I will not agree with you.
- Why? Isn't there even an element of truth in what I have said?
Indeed, an element! But who counted it? Can you imagine what would have become of Russia if there were no system of justice? Trains would have stopped, planes wouldn't fly, you wouldn't be able to go out into the street for fear of being attacked or lynched.
I will tell you when there was lawlessness in Moscow. That was on October 3, 1993 when the militia had left the streets giving way to communist-fascist thugs who stormed the Mayor's Office and the TV center in Ostankino. And if their nest in the Government House wouldn't have been destroyed on October 4, then real lawlessness would have set in. And not only in Moscow, but in all of Russia which would once again shed blood.
That is why before speaking about the morality of law let is try to understand what is happening to the morality of our society. Law, as well as the economy, is a continuation of politics.
We are now going through a troublesome and prolonged period of transition from a totalitarian system (in which the only law was the unlimited arbitrary rule of one or several dictators) to an emerging legal state. And we must bear in mind the economic crisis which is a result of the same old system. That is why our general picture is so versatile: there is poverty and prosperity, crisis in certain industries and growth in others, good laws and cowardly bureaucrats, bad laws and honest judges which want to improve them, selfless defenders of human rights who are against the violation of these rights in Chechnya, and shameless politicians who are using this tragedy as a means of seizing power at any cost.
Public morals are much more conservative than the economy and that is why the minds of the people are still tumbling between yesterday and today, habitually perceiving our life as only dark.
- But the average man measures freedom and democracy not by the amount of political rights, but by his standard of living.
The average man is wrong here and is demonstrating a lack of foresight. There is no absolute freedom and if there is this means absolute lawlessness. Freedom means a responsibility for what a person does.
I hear a lot of people boasting about not intending to go to the elections. They think that this way they will be able to avenge the current authorities for life not being good enough. Alas, this is a typically soviet approach. This way we can do ourselves a very bad favor. It would be more useful if these people would try to understand for whom to vote proceeding from their own interests and not from the lavish promises of demagogues.
It is noteworthy that those who are dissatisfied with the current system can express their criticism anywhere they wish and this alone means freedom. Never in its history has Russia reached such a degree of freedom.
- I can agree about political and civic freedoms, but when there is no money and there is nothing to eat freedom stops being a value.
I will never agree that the average people do not care about political rights and freedoms. The whole system of values has changed. Haven't you noticed that it only took us four years to forget about the humiliating lines for food and commodities in which whole generations of soviet people had spend half of their lives? I still keep such tokens of personal humiliation - a "customer's visiting card" and a coupon for tobacco -the highest achievements of "developed" socialism. Today no one is surprised that there are no longer any lines in this country.
- Yes, of course, the abundance of goods and services is an indisputable fact. But not everyone can afford them.
But if abundance is maintained it means that it is being used. And not only by the very rich. One-tenth of what is available would have been enough for them, and the suppliers of the rest would have gone bankrupt - such are the laws of a market economy. But you can see that trade and the services are only expanding.
Let is us take the construction industry. I am not an economist, but can anyone explain to me why there is a construction boom amidst an economic crisis? How come Moscow is being revived? New houses mushroom, old mansions are restored and cathedrals rise from the dead. While some people are lamenting about the collapse of the Motherland, others are busy building it.
And now about those who cannot afford the current abundance. I think that we are talking about from 35 to 40 per cent of the population. The salaries and pensions of these people (which are paid irregularly) are constantly lagging behind the price growth. This especially concerns government enterprises and state collective farms which are unable to function in conditions of a market economy. People of the older generation are also unable to adjust to the new conditions because of their age, ailments, lack of energy and many other reasons. Our new world seems alien and cruel to them. That is why the concern about the needy should become the first and foremost duty of a democratic state if it intends to survive. It should lead an unending dialogue with the people.
- You are asking for too much! It is much easier to announce a meager rise of salaries and pensions that is several times behind inflation. Maybe the government simply has nothing to say to the people?
I think that there are a lot of things to discuss, including the past and present standard of living. How did people live on the highest pension of 120 rubles? It could only provide for a more or less decent living in the beginning of the 1960s when it was first established. But by the end of the 1980s its value was at least half of the initial one. We should not forget that the price rise did not begin in 1991, but much earlier and no one then heard anything about inflation adjustments, compensations, benefits, or free fare for pensioners.
And what about most of the elderly who lived then on a 60-80 ruble pension? Nothing could be bought for these pennies in the empty stores. Homeless people did not appear today, they've been here since the 1960s.
It is very unlikely that the soviet past was better than the democratic present which gives people a choice and, primarily, a choice of one's occupation. Before the soviet state was the monopolistic employer and if you had any problems with your chiefs the state could easily ruin your career putting you on a black list. Now the situation is very different and a person can hold any number of jobs or start a business - everything now depends only on one's personal abilities and intentions. But is became much harder to get money for doing nothing which was the favorite hobby of many soviet people. Remember the saying: While the management pretends to be paying our salaries, we will pretend to be working?
How can one not notice all this? Incidentally, the Constitutional Court is absolutely incompatible with the soviet system which preferred tribunals and convictions without court hearings. Proof to this is a warning I got from a member of the Duma communist faction who said that after the "change of power" all of us will answer for what we have done. Another Duma deputy, a former communist and a present member of the Zhirinovsky party and also a doctor of law promised to deal with me personally "next year when we come to power". Such are the morals and manners of "the fighters for the cause of the people". And there are still people who listen to them today.
- It seems that our laws and people who are responsible for their fulfillment are lenient toward them. But let us go back to the subject of law and morality in Russia. Any law must bring to society a certain moral approach which should be used by those who are to observe it, otherwise morality languishes. And what is happening in Russia? Some people decide not to pay taxes, others are not ashamed to steal a pound of nails from their job and still others rob the country of hundreds of millions of dollars, or put out contracts on people. They are not punished because the law is ineffective. And this corrupts society. Why is this happening?
Of course, the law in a democratic society must be based on moral principles, in other words, it should serve the good of society. But an adopted law is a result of a dispute and compromise between legislators who are quite often act in pursuance of different interests. As a result, a law that is passed differs considerably from its draft and serves other goals than it was initially intended for.
Here is an example. The economic reform demanded a new Civil Code that would regulate the evolving market relations. After overcoming the fierce resistance of the anti-reformist forces in parliament (Duma) the General Part of this document was passed. However, the clause on the private ownership of land (stipulated in the Code) that meant a free disposal of land (which is in line with the Constitution of the Russian Federation) was paralyzed by the Duma's majority. The reason they put forth was to wait till the adoption of the Land Code. However, the first reading of the Land Code has already been passed and there is no mention of a free disposal of land in it. And without this right farmers are going bankrupt and investment in agriculture is being blocked. Who in his right mind would want to invest in an enterprise standing on someone else's land? These laws are spokes in the wheels of democratic development.
- It means that our deputies have gone back to double dealing just as during soviet times. If the morals of the majority of the "cream of society" (if we consider the deputies to be the elite) are such, the moral side of the laws they are passing is in danger. Because the laws they adopt serve their own interests and convictions?
Many deputies shift their convictions depending on the political situation. Here is the latest example. In December 1994 and January 1995 the State Duma passed two resolutions in response to the resolution of the European Parliament regarding the situation in Chechnya. These two resolutions rebuffed European parliamentarians for interfering in Russia's internal affairs and justified the use of the army in Chechnya. The argument that was presented is worth citing: "… since military actions in Chechnya are directed … against organized military formations …these formations can only be unarmed with the help of a regular army".
Several months later a group of State Duma deputies came to the Constitutional Court and initiated, together with the Council of the Federation, the case on the constitutional nature of presidential decrees and government decisions concerning the restoration of a constitutional order in Chechnya. This time the deputies insisted that the use of the army in Chechnya was "unconstitutional" and that what their representatives at the hearing tried to prove.
After the hearing I made a point of comparing the names of Deputies who applied to the Constitutional Court and those who voted for the two above resolutions of the State Duma addressed to the European Parliament and this is what I found: of the 93 deputies who came to the CC, 55 voted for the resolution that justified the use of the military in Chechnya. Among these were, of course, all three representatives of the group of deputies -- Lukyanov, Kalmykov and Karelin - and many other well-known figures. Were they sincere? I leave this decision to the reader.
-But why aren't the most effective laws working?
I must remind you that during the period of transition from the old communist Russia to the current new Russia there were no revolutions, purges or a violent change of state power. However, on all levels of power and, especially in the middle and lower sections, there are still a lot of officials who have not accepted reform and are, actually against it.
And the law enforcement bodies are no exclusion. There are quite a lot of people there who are consciously obstructing the application of new laws for purely political reasons. These people should be banned from this sphere, but who will replace them? We place our hopes on the new generation, but there are quite a lot of problems here, too. Law schools are still "in the hands" of the old-timers. What can they teach young people if they hate the new world and are dreaming about a restoration of the communist regime? This results in a criminal case brought against the television show Puppets by the General Prosecutor's Office, while the heads of extremist organizations which publicly announce a policy of violence have no problems with the law.
However, both those who serve justice and the public are beginning to realize the essence and significance of human rights and freedoms. Recently a judge of the Murom city people's court asked the Constitutional Court to verify whether Clause 8 of Article 60 of the Housing Code complied with the Constitution. According to this sadly famous clause, people who were imprisoned for over 6 months were automatically deprived of housing. After serving term such a person became homeless and, consequently, an outcast. It is difficult to think of a more idiotic law, but for many years it multiplied the number of homeless and criminals.
The Constitutional Court declared all clauses of Article 60 (which limited the rights of other categories of citizens to housing) of the Housing Code unconstitutional. I recall the modest judge from Murom with gratitude and respect and I know that the number of such people in our judicial system is growing. They are working hard in very difficult conditions, are overwhelmed with cases, but are honestly fulfilling their duties. Thanks to them the general attitude of the population toward justice is changing for the better.
Let us turn to statistics: according to a report of the Human Rights Commission headed by Sergei Kovalyov, in 1993 the courts considered nearly 25,000 cases of citizens' claims to the state regarding the actions of government bodies or officials. Most verdicts were in favor of citizens. The Commission considers this number to be small as compared with the total number of civil suites (400,000 this year), but I think this is a lot. Only four or five years ago no one would ever think of suing the authorities.
-Ernest Mikhailovich aren't you afraid to be blamed for fawning upon the existing power the more so that you are a justice of the Constitutional Court which means, a man of power?
Of course not. I am a lawyer and this gives me a chance to see more clearly than others the changes that are taking place in the people's sense of justice. I have never tried to accommodate myself to power, it rather accommodated to me, although this sounds a bit arrogant. For instance, I haven't lifted a finger to become a justice of the Constitutional Court (I was out of Moscow during the election). I am probably the only justice of a CC in the wold that has been elected in absentia.
The power and I have advanced "in parallel", but only to the crossing where it had radically changed its course. This happened during the period from "Krushchev's thaw" to the time of soviet intervention in Hungary. This also happed during "perestroika" until the end of 1990 when the "500 days" program was rejected. And the same is going on today, because I am convinced that despite all the mistakes and scandals connected with the current political system, it still remains the only guarantor of a successful continuation of reform, human rights protection and the preservation of the achieved degree of freedom. I have dreamed about freedom all my life and I have finally acquired it, at least at the end of my life. And I very much wish that my Russia becomes a stable and free country for everyone.
Interview by Lidia Lukyanova
