Silencing dissent

Russia’s Constitutional Court judges are at risk of losing the right to criticize its rulings publicly

The State Duma Committee on State Building and Legislation has prepared amendments to the new law “On the Constitutional Court” ahead of its second reading. According to the proposed changes, judges will be prohibited from “criticizing” the rulings of the Constitutional Court “in any form,” as well as from “making their disagreement with decisions public in any form.” They will no longer “have the right to disclose dissenting or concurring opinions in any form, or refer to them publicly.”

The committee’s head, lawmaker Pavel Krasheninnikov, referred to common practices abroad. According to him, judges in many Western countries, whose functions are similar to those of Russia’s Constitutional Court judges, do not have the right to express their dissenting opinions publicly.

A dissenting opinion is when a judge expresses disagreement with a court ruling in written form. And it’s not just Constitutional Court judges that have the right to express dissent. That said, in other courts, a dissenting opinion is simply attached to the case file, whereas in the case of the Constitutional Court it’s published along with the decision adopted according to a majority vote.

The fact that dissenting opinions from Constitutional Court judges were made public gave them a special value, although they don’t involve any legally significant consequences. The Consultative Council of European Judges (CCJE) maintains that a dissenting opinion “can contribute to improving the content of the [court’s] decision and can assist both in understanding the decision and the evolution of the law.” The existence of dissenting opinions speaks to the principles of open justice and pluralism of opinions.

The CCJE

The Consultative Council of European Judges is the Council of Europe’s advisory body on the independence, impartiality, and competence of judges. The Council of Europe was established in 1949 as an international forum aimed at ensuring peace, cooperation, and the development of human rights on the European continent. The council’s resolutions aren’t legally binding, but there are a number of important agencies that operate under it, including the European Court of Human Rights (ECHR) and the Parliamentary Assembly of the Council of Europe (PACE). The Council of Europe unites 47 states; Russia joined it in 1996.

A dissenting opinion contains an alternative approach to resolving a legal problem. Of course, it isn’t the only factor in the evolution of the law, but it is an important one that influences legal doctrine, judicial practice, and legislation. Russian Constitutional Court Judge Gadis Gadzhiev — one of the record-holders in writing dissenting opinions — gives the following example from his own legal practice: his opinion on the need to establish various degrees of incapacity within the law was subsequently transformed into a Constitutional Court judgement. Later, amendments were made to Russia’s Civil Code.

From 1992 to 2019, judges issued more than 400 dissenting opinions and opinions (partial disagreements) on the Constitutional Court’s rulings. The most resonant ones often gain media coverage.

For example, in 2017, Judge Vladimir Yaroslavtsev wrote a dissenting opinion on why the court should not have considered the Justice Ministry’s request for Russia not to fulfil a European Court of Human Rights (ECHR) ruling on the Yukos case. The ECHR ordered Russia to pay about 2 billion euros (that’s about $2.4 billion today) in compensation to the nationalized oil company’s former shareholders. At the time, the majority of Constitutional Court judges supported the Justice Ministry, resulting in the second instance where Russia refused to comply with an international court ruling (since amendments were made to the Russian constitution giving Constitutional Court judgements priority over international law).

If the judges disagree with only part of the decision, for example some aspects of the reasoning, the document is simply called an “opinion.” Judge Konstantin Aranovsky’s opinion on the Constitutional Court ruling that rehabilitated victims of political repression have the right to state housing is a good example. He challenged the notion that Russia is the legal successor of the repressive Soviet regime, but didn’t dispute the right to housing.

No. Formally, Constitutional Court judges will still have the right to express dissent. But dissenting opinions will no longer be published simultaneously with court rulings, as they are now. And the judges themselves will not be able to share dissenting opinions with journalists. Krasheninnikov said that they plan to apply “the general procedural rule that [a dissenting opinion] shall not be promulgated and [shall be] kept only in the case materials.”

This is still unclear.

Judges’ opinions are supposed to be attached to the minutes of Constitutional Court sessions and kept with these records (this procedure is outlined in a new section introduced to article 76 of the law “On the Constitutional Court”). The parties to the case have the right to familiarize themselves with these minutes unconditionally. Other participants in the proceedings, for example experts, require permission from the Constitutional Court to access these records (according to article 59, section four of the law “On the Constitutional Court,” which hasn’t been amended).

The procedural codes that Krasheninnikov refers to also provide an opportunity for participants in court proceedings to familiarize themselves with a dissenting opinion on the case. For example, an individual involved in criminal proceedings has the right to file a petition to familiarize themselves with a judge’s dissenting opinion within three days of the announcement of the sentence. This matter is dealt with similarly in civil and administrative proceedings.

If those involved in Constitutional Court proceedings have the right to familiarize themselves with dissenting opinions, then they can find out about the content of these documents. However, the court could interpret the law in such a way that access to dissenting opinions becomes unavailable, including for those involved in these hearings.

A dissenting opinion will not be part of the session minutes, but rather an appendix to these transcripts. Nothing prevents the Constitutional Court from denying access to the appendix, interpreting this document as part of the secrets of the deliberation room, where its decisions are made.

Trial participants being able to familiarize themselves with dissenting opinions in civil, criminal, and administrative cases is important for appealing verdicts. However, there is no higher authority above the Constitutional Court, so it’s impossible to appeal its decisions. This could provide additional reasons to believe that those involved in court proceedings have no need to get acquainted with dissenting opinions from Constitutional Court judges.

This, in turn, could reduce the motivation of the judges themselves. If opinions won’t be published anyway, why write them? Perhaps only for future historians exploring the Constitutional Court archives many years from now.

A judge who violates these new prohibitions could be deprived of their mandate. Involvement in almost any public activity that contradicts the official line of the Constitutional Court could be interpreted as an act “defaming the honor and dignity of a judge” or considered committing acts “incompatible with their position.” Moreover, in the event that the amendments are adopted, only the Constitutional Court will have the right to dismiss judges — for now, the Federation Council also has this ability, upon a proposal from the president.

Countries around the world handle dissenting opinions differently. Researchers have traced this institution back to the Anglo-Saxon legal tradition, but dissenting opinions are also widespread across continental Europe As of 2012, only seven of the European Union’s 27 member states do not recognize this right: Belgium, France, Italy, Luxembourg, the Netherlands, Austria, and Malta.

In Russia, dissenting opinions within the Constitutional Court have been around since its creation in 1991. Judges were not forbidden from making these opinions public and at some point they began publishing them in official sources. It’s not unlikely that the references to common practices abroad (which Russian legislators ignore easily in other cases) are correct in this case. Taking into account the fact that the Constitutional Court is already more or less controlled by the president (currently, the head of state is not only empowered to initiate the appointments of judges to the Constitutional Court, but also able to initiate their dismissals), dissenting opinions are one of the court’s few remaining manifestations of judicial independence. In fact, officially speaking, the Constitutional Court is itself of the same opinion. But now judges are effectively being deprived of this possibility.

Most likely, yes. The amendments are being prompted by the parliament’s legislative committee and its chairman Pavel Krasheninnikov, who was one of the main figures involved in the entire constitutional reform.

Text by Olga Kryazhkova

Constitutional lawyer and PhD Candidate in Law

Translation by Eilish Hart