Get up, the court is silent!

Klishas and the company want to forbid judges to have their own public opinion

The judges of the Constitutional Court will be prohibited from expressing their opinion on issues classified as the competence of the court, "in any form." Such an amendment to the draft law on the Constitutional Court, in the order of bringing it into line with the updated constitution, was introduced on October 16 Senator Andrei Klishas and deputy Pavel Krasheninnikov, this happened in the second reading. In the initial project, which entered the Duma from the President of September 22, the ban concerned only issues that have already become or could turn out to be the subject of consideration of the court (this was reasonably and so before), and in accordance with new amendments, judges will be forbidden to criticize previously made decisions.

The principle of rudeness by the Clisas -Krasheninnikov series amendments sequentially passes through the entire bill until Art. 76 of the Law on the Constitutional Court on the special opinion of judges. According to the new law

The judges will, of course, be allowed to have their own opinion, different from the position of the majority, but it will be forbidden to publish it.

If the Presidential Project preserved the almost previous edition of Article 76, according to which “the judge’s special opinion is attached to the case file and is subject to posting on the official website of the Constitutional Court ... Together with the decision of the Constitutional Court”, then Klishas and Krasheninnikov proposed to go much further:

Quote from the bill

“The judge’s special opinion is attached to the protocol of the COP meeting and is stored with him ( only in the court of the court. -“ New ” ). The judge of the KS is not entitled to make a special opinion in any form or publicly refer to it. ”

In fact, the institution of special opinion, which operated in the Constitutional Court since its creation in 1991 and was actively used by many judges, is completely emasculated. According to the degree of cunning, this is a tracing paper from Soviet procedural legislation, which also allowed a special opinion of judges, but it was stored in writing in a court in a sealed and sealed envelope, which only the inspection court had the right to open.

When in the draft presidential constitutional amendments, published at the beginning of 2020, a new foundation appeared for the termination of the powers of the COP judges in the form of “committing an act that defeats the honor and dignity of a judge”, supplemented by the right of the president’s right to the Federation Council, it seemed excess: in the traditions of our bureaucracy, he will commit an “discrepancing act”, leaves, leaves. “Quietly,” and what to disturb on such an unworthy occasion of the president and the Senate. After the amendments of Klishas - Krasheninnikov, everything fell into place: according to the new edition of Article 18 of the Law on the Constitutional Court, the question of unconditional to the president can raise the KS itself - that is, most angry colleagues of too frank judge.

Thus, the status of judges of the Constitutional Court is reduced to the actual status of ordinary judges, who, under pressure from the no less crafty Code of Judicial Ethics, prefer not to comment on their own, just in case, and even more so not to criticize other people's decisions. But it will hardly be fair if this amendment goes down in history under the name “Kramsheninnikov” - not a senator and not a deputy are interested in it at all.

This “ommer”, so brilliantly lobbied in two moves, should rather have the name of Valery Zorkin, who will now receive under his eternal chairmanship not only an obedient, but also a mute team.

With the legality of the ban on judges (and not only COP) to publish their special opinion, of course, can be argued. The judge’s special opinion does not belong to any famous types of protected secrets, including the state. It is not for us to retell to the Constitutional Court Article 29 of the Constitution of the Russian Federation that “no one can be forced to express their opinions and beliefs or rejection of them”, that “everyone has the right to freely ... to disseminate information in any legal way”, and “censorship is prohibited”.

You can argue, but where? It was the most logical in the Constitutional Court, but he already said everything - back in March, approving the amendments to the Constitution and the method of adoption at the imminent and non -public meeting. International courts and commissions (such as “Venetian” - an advisory commission on constitutional law of the Council of Europe) would probably have come (or perhaps if there are applicants) to the conclusion about the non -constitutionality of the prohibition on the publication of special opinions of judges, but our native KS now has a council in the form of paragraph 3 of the Law on the Constitutional Court, which gives it to them The right "at the request of the President of the Russian Federation, the Government of the Russian Federation, the Supreme Court of the Russian Federation to resolve the issue of the possibility of enforcing a decision of a foreign or international court ... If this decision contradicts the basis of the public law and order of the Russian Federation."

And what is the "public law and order of the Russian Federation"? In details, this is probably only the chairman of the Constitutional Court and those who appoint him to this post. And on the basis of all that has been said, we can only conclude that our "public law and order" implies primarily non -publicity, and

The perfect order will come when everyone shuts up.

So far, this is directly regarding only civil servants and state employees, but the space for expressing “wrong opinions” is inexorably narrowing for everyone.