KPMG: The Constitutional Court is losing its independence

The Russian Parliament has adopted amendments to the law "On the Constitutional Court of Russian Federation" which remove the age limit for the chairman of the court and complicate the procedure of his/her dismissal.

Previously the Chairman of the Constitutional Court, like other judges, could hold his post until reaching the age of 70. Valery Zorkin, the Chairman of the Constitutional Court, is 67 years old. The law also makes it difficult to dissmiss the head of the court. Whereas previously s/he could be sacked by the decision of his fellow judges, now a decision of the Federation Council, the upper house of the Russian parliament, is needed, which itself can be issued on the basis of the submission by the president.

The Constitutional Court of Russian Federation rules on whether or not certain laws or presidential decrees contradict to the Constitution of Russia and are, therefore, illegal.

Irina Panina
senior consultant
KPMG in Russia and CIS

+7 495 937 4477
moscow@kpmg.ru

The latest changes to the Federal Law On the Constitutional Court of the Russian Federation, proposed by President Medvedev and adopted by the Parliament, provide cause for reflection on the role of the Constitutional Court in Russian life.

The court is a special body that autonomously and independently exercises judicial power through constitutional proceedings. The main aim of the court's activities is to ensure the supremacy and direct and immediate application of the provisions of the Constitution, and to uphold constitutional order, rights and freedoms of citizens.

Thus, ideally, the Constitutional Court, as an autonomous and independent body, ought to set the course for the development of Russia's legal system, lawmaking processes and law enforcement practice.

It should, though, be noted that in practice the trend has been towards the court losing its independence. The latest changes to the law confirm this view.

Leaving aside the debate over the political rationale for the changes and the question of who specifically benefits from a "hand-held" Constitutional Court, I would like to analyze one of the most important of the proposed changes: the removal of the age limit for the chairman of the Constitutional Court.

According to the present version of the law, the oldest a Constitutional Court judge can be is 70, and all court judges enjoy equal rights. It seems to me that this provision concerning the judges' equality should be interpreted as a guarantee of a judge's objectivity and independence when delivering judgment.

Under the proposed changes, the court’s chairman will not have to step down at 70. I suggest that this change radically alters the status of the chairman and that of the other judges, and violates the principle of their equality.

What is the outcome? All judges are equal, but some judges are more equal than others? Can this change be regarded as positive for the development of the judicial system and the Constitutional Court in particular? I think not, and this is why:

Firstly, as I noted above, the change violates the principle of the judges' equality, by making the chairman untouchable.

Secondly, given the powers granted to the chairman by the law, it may be suggested that this amounts to a form of "usurpation of authority" by the chairman, which, in my view, cannot be a good thing for the quality of the court's constitutional review practices, as lack of "competitors" deprives people of the incentive for continual development.

The changes would enable the chairman to head the court up to his or her death, as long as he/she was not accused of abusing his/her rights or performing his/her duties in bad faith. But who can make the decision to dismiss the chairman if the chairman abuses his/her rights and performs his/her duties in bad faith? Under the present version of the law, this decision requires a two-thirds majority of votes from the total number of judges in a secret ballot.

President Medvedev's changes would put the decision into the hands of the Federation Council, the upper chamber of Russian Parliament. I suggest that granting the Federation Council such powers would put the chairman's independence in the court's constitutional review practices under threat.

Summing up all the above, we may conclude that it cannot be said that judicial power is being strengthened, but it can be said that the Constitutional Court is gradually losing its independence, which is not normal for a democratic law-governed state.

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