The law is what holds it together

On the article of the Chairman of the Constitutional Court of Russia, who responded to the publication of Novaya

From the editor:

This text, in accordance with the law "On Mass Media", which guarantees the right to reply, was sent to Rossiyskaya Gazeta, which published an article by Valery Zorkin. The editors did not answer Elena Lukyanova, and therefore we print the answer on our pages - after all, it was Novaya Gazeta that started the controversy.

Readers of Rossiyskaya Gazeta most likely do not read Novaya Gazeta, and vice versa. Therefore, it is necessary to explain what happened. Novaya Gazeta reprinted my scientific article published in a professional academic publication. In this work, I analyzed one of the decisions of the Constitutional Court of Russia and concluded that in certain situations the Constitutional Court, following the lead of politics and politicians, violates not only the procedures of constitutional proceedings, but also the norms of the current Russian legislation. In support of my opinion, I gave a number of quite serious, in my opinion, legal arguments.

The answer was not slow to follow. On March 24, the Chairman of the Constitutional Court of Russia, Professor Valery Dmitrievich Zorkin, without mentioning his position, almost one and a half pages of your newspaper ( Elena Lukyanova’s text was originally intended for Rossiyskaya Gazeta - Ed. ) harshly criticized this article and the “enlightened layer ' in my face.

“I am now writing about the fate of Russia and the dependence of this fate on everything connected with law as a citizen of Russia,” he said, thus denying enlightenment to the readers of Novaya Gazeta. This is about ethics.

I suppose that his reaction was so stormy because, firstly, he had no grounds for objecting on the merits of the arguments presented by me. Secondly, the issue on which the decision of the Constitutional Court that I am analyzing was made was the very issue that divided society not only in our country, but throughout the world, about the geopolitical fate of the Crimean peninsula. Although in my purely scientific analysis, I did my best to avoid any social aspect or, God forbid, political.

I must say that I was lucky. Few legal scholars in our country have had the opportunity to put their thoughts on such a wide public discussion. Therefore, I am extremely grateful to my teacher Valery Dmitrievich Zorkin for his attention to my modest scientific research. But teachers and students sometimes have disagreements. And if, on the whole, Professor Zorkin confirmed my hypothesis about a serious difference in the understanding of the essence and significance of law by representatives of different legal schools, then some of his statements, it seems to me, either do not fully correspond to reality or need to be developed. Therefore, leaving aside all the accusations made by Zorkin against me, I decided to use the right of reply granted to me by law and consider it necessary to continue our discussion in absentia, so actively supported by readers. Since I had the opportunity to discuss in this format!

So. Justifying the position of the Constitutional Court, Professor Zorkin mentions the principle of international protection of fundamental human rights and freedoms, which I have forgotten. Apparently, he was referring to the UN initiative introduced in 2005, which is called "The responsibility to protect" ( The responsibility to protect) . This is indeed the most important modern principle of international law, which implies the possibility of bringing armed forces into the territory of a state where the rights of citizens are violated with the sanction of the UN Security Council. But this is done only and exclusively by decision of the Security Council and without any judicial approval. Therefore, it is not clear: what does the Constitutional Court of Russia have to do with it? If human rights and freedoms are violated somewhere, then the question of such violations should be raised before international organizations by politicians. And not just to put, but to raise a fuss, to insist and demand that decisions be made in accordance with international procedures. This is a purely foreign policy issue, not a judicial one. The maximum that a court can do in such a situation is to give a qualified detailed opinion on the essence of these violations, on their compliance with the principles and norms of international law, and the applicant country can use such a conclusion to support its claims. But the court cannot in any way justify the departure from the law when making its own decisions by the principle of international protection. At the same time, they forget about other principles of international law: the principle of the sovereign equality of states, the principle of non-interference in internal affairs, the principle of inviolability of state borders, the principle of sovereignty, the principle of territorial integrity, the principle of the prohibition of the use of force or the threat of force, and the principle of conscientious fulfillment of international obligations.

Another justification for the decision of the Constitutional Court, according to Zorkin, is the illegitimacy of the events on the Kiev Maidan. However, the issue, which was considered by the Constitutional Court on the night of March 18-19, 2014, was in no way related to the legitimacy of the Maidan and could not be connected. Even in the most distant context. It was a question of conformity with the Constitution of an international treaty that had not entered into force. Moreover, for compliance with the Constitution of Russia, and not the Constitution of Ukraine. The issue of the conformity of the events on the Kiev Maidan to the Constitution of Ukraine should, if it considered it necessary, be considered by the Constitutional Court of this country. Exactly as the Constitutional Court of Russia did in September 1993. Because he considered it his duty. But usually, when revolutions or coups are made (as you like), the verdict of history remains in history, and not the verdict of law. No revolution is legitimate in terms of law. Then, in the fall of 1993, in the conditions of actual dual power in Russia, the form of government changed, a forced (with the help of tanks) transition was carried out from the Soviet Republic to a mixed parliamentary-presidential republic with a huge asymmetry of powers in favor of the head of state. And the Constitutional Court honestly and objectively expressed its position on this issue. But the verdict of history still remains in history. As in the Maidan events, law played a very minor role. And the Constitutional Court of Russia has nothing to do with it, in any way, in any context. After all, it would be strange if the Constitutional Court of Ukraine at one time made a decision on Decree 1400.

Another question is that, having found itself in the conditions of a new constitutional reality in 1994, the Constitutional Court of Russia could and should have been more consistent and tougher. And we must give him his due: where it did not directly concern anyone's political interests, he behaved like that. His contribution to the development of local self-government, to the gradual and very complex implementation of the norms of international law in domestic law enforcement practice, to the protection of the rights of citizens, which is so difficult to take root in the Russian legal field, is enormous. But where the legal problem at least somehow touched upon issues of power (presidential decrees, interpretation of the Constitution, elections, organization and activities of the parliament, federal structure), the Constitutional Court did not make fundamental decisions that could seriously correct our constitutional history. As a result, she was more and more driven into a dead end, in which we all ended up.

Professor Zorkin writes: "The supervalue of law is not identical with the question of whether or not to be Russia at all." I do not agree. In the prevailing modern conditions, the supervalue of law is exactly the same as the question of “to be or not to be” for Russia. And this is not legal chicanery. Zorkin himself confirms this with his following thesis: “In the absence of ideological bonds, the only possible bonds are legal bonds. If they are not, the country collapses into the abyss. And in a sense, the supervalue of legal issues is precisely connected with the impossibility of cementing this community with anything other than law. The task of the Constitutional Court is to stand on this to the end, consistently and inexorably. Otherwise, there is cognitive dissonance. I am sure that the Constitutional Court should not talk about any bonds other than legal ones. All other braces are propaganda. Law and bonds are incompatible concepts. As well as bonds and democracy. Or either. Either braces or right. Professor Zorkin is right here.

That is why the Constitutional Court itself should have started a discussion about the law a long time ago. It was he, and not independent scientists. But since this was not done, then someone should. This discussion raises at least two unanswered questions. The first of them is not at all new, but nevertheless the main one in our life today. This question was asked almost a century and a half ago through the lips of the hero Saltykov-Shchedrin in the first chapter of his cycle "Cultural People". It consists in what we still want in the depths of our souls - "constitutions, stellate sturgeon with horseradish, or to skin someone." Having remained unanswered for a century and a half, it is precisely this question, which in fact is the question of braces, that takes revenge on us in the most cruel way. And so far, we are only good at “ripping off someone.”

But if, after delving deeply into ourselves, we nevertheless come to the conclusion that the only normal and civilized bond for us is law, then there can no longer be any other bonds. Everything else is from the category of philosophy and morality, from the field of freedom of opinion, multiculturalism and tolerance. Only in this case, one must be aware that it will no longer be possible to “rip off” someone with impunity.

Moreover, in this case, we will immediately begin to ask ourselves other questions: can, for example, a person in whose mind any non-legal values prevail over the values of law, exercise the functions of protecting the Constitution and applying the law? Can he be a judge, prosecutor, investigator? And further - can people with this type of consciousness, for example, deputies, create law? And if not, how and by what criteria should we select them? Because, as the remarkable lawyer-journalist Leonid Nikitinsky quite rightly noted, “in the modern world it is impossible to administer a court relying on “clamps” and with such an aversion to the law.” It is impossible with such an attitude to the law to investigate crimes, control the observance of the law and engage in lawmaking.

In response to my detailed analysis of the procedure for adopting just one decision of the Constitutional Court, Professor Zorkin reproached me for legal chicanery. He does not agree with those who are "ready to endlessly discuss the procedural subtleties allegedly violated by Russia." And I don't agree with him. Because this raises another key question: what is the role of legal procedures in the system of relations between the state and citizens? Any procedure. Not only constitutional. Procedures for interrogation, search, detention, detention and in places of deprivation of liberty, procedures in criminal and civil proceedings, in the procedure for issuing numerous certificates, licenses and documents, in the process of organizing and conducting elections, registering political parties, preparing, accepting and joining force of laws, in the appeal of state actions and decisions. This list is endless. Really the mankind invented all these rules in vain? And aren't they just the result of a centuries-old clarification of the relationship between the state and citizens about where the limit of state intervention in their lives is and how they can check it?

By no means claiming to have such a subtle knowledge that the Chairman of the Constitutional Court of Russia has regarding the theory and practice of constitutional proceedings, I nevertheless know for sure that the Constitutional Court, headed by Professor Zorkin, itself very strictly refuses applicants on the same procedural grounds. And I am absolutely sure that only strict observance of procedures is a guarantee of human rights and freedoms and a condition for the implementation of the rule of law principle. Actually, this is exactly what the citizens of Russia demand today in their relations with the state.

Therefore, I believe that by the absence of an answer on the merits of the claims presented, Professor Zorkin fully confirmed my correctness.

Being convicted of violating his own procedure, one of Russia's top lawyers did not provide legal arguments in his defense, but accused his critics of unprofessionalism. And he also demanded repentance from them according to the rules of the medieval religious rite of the Catholics (mea culpa). All this sounds beautiful and menacing. But in fact, it is nothing more than an offer to Russian citizens to come to terms with the fact that they are simply ordered to enter the legal field. It's like mine. What if we don't agree?

I assure you, if they answered me without braces and repentance, they would have objected professionally and proved that I was wrong, I, by God, would have had the courage to admit that I was wrong publicly. That would be better both for the cause and for Russia. But with braces and repentance, I can’t. The talk about the braces only convinced me that it was necessary to ring the alarm bell and announce a broad discussion about law and legal procedures.

In my article in Novaya Gazeta, breaking all the canons of the classical academic style, I sincerely confessed my love for the Crimea. To this beautiful place on our planet, which I have loved since childhood, when my five-year-old parents first brought me, as they said then, to the south. These memories are indelible from memory as an image of the childhood happiness of many people of my generation. People for whom the dry and fragrant Crimean wind, the gentle waves of the Black Sea, the unique silhouette of the mountains, the starry scattering of the August Milky Way and the singing of cicadas to the accompaniment of the surf will forever remain their memories of the Crimea.

And so, when the Soviet Union collapsed, I fought for my Crimea in my own way. I helped write the Constitution of the Autonomous Republic of Crimea, flew in to reconcile the Crimean parliament with the government, tried to correct the legislative nonsense - to extend the laws of this republic to the city of Sevastopol; gave lectures on the territories gravitating towards Russia, and with all her might pushed the Russian leadership towards a diplomatic solution of the issues of these territories. Not only Crimea - Transnistria, Abkhazia, South Ossetia. But then nobody needed it, except for a small handful of specialists. All our efforts were in vain. And when it became necessary, then ... Then a completely different story began, which continues to this day.

... And everyone has their own Crimea. My Crimea is my favorite song about my bluest Black Sea in the world, these are fishing nets stretched on sea pebbles, shaggy peach peel, an incredible, incomparable smell of blooming yayla, dried algae, boxwood, laurel and Crimean roses .. .Regardless of the state affiliation and jurisdiction of the peninsula.

Here it is, my Crimea.

This is not forgotten.

This is not denied.