Interview with Tamara Morschakova


 

Twenty years ago the Soviet Union passed into history. The people of Russia began a new country with new laws and a new kind of life. RussianLawOnline talks to Tamara Morschakova, a former deputy chairperson of the Constitutional Court, who was directly involved in creating the foundation of new Russia.

In October 29, 1991 Tamara Morschakova was elected to the Constitutional Court, a new body which is empowered to review any law, an act of the government or a presidential decree. From 1995 – 2002 she was the deputy chairperson of the court. In 1995 she dissented on the legality of the presidential decrees and orders of the government that sent troops to Chechnya. She disagreed with the termination of the court’s inquiry into the secret decree on preparations of the war. According to Morshchakova, the decree affected civil rights and, therefore, could not be classified.

We want to see whether the reforms of the legal system went as planned and where the country is now in relation to the roadmap drawn up in the early 1990s.

RussianLawOnline: Looking back on 20 years since the reform of Russian legal system, were these reforms successful?

Tamara Morschakova: First of all, let’s ask whether such dramatic changes were really needed? The answer is a resounding yes. Reform had to take place unless we wanted to stay isolated, stuck in the past. Our legal paradigm was clearly incapable of development. So the effort put into changing the system was highly useful for society, even if the outcome occasionally turned out to be different from the one we hoped for.

Let's argue by contradiction and ask whether it would have been better or worse or if any development would simply have stopped if the legal system had not been changed?

It is often said that the Constitution is simply words on paper which have not been put into practice. And indeed I can see that the Constitution still, sometimes, acts as a policy document. But I always ask in return what we would have felt if we suddenly realized that in fact there was no such document. No goals would have been identified. Those who defend the idea of law would have had nothing to fight for in the legal field. This is very important.

So when I am asked ‘Why does the president declare that rights and freedoms must govern all state activities? Who needs this?’, I always reply that the words of the president indicate that these ideals have not been abandoned, even if they have not yet been implemented. They are a signal for society to get involved and bring new legal foundations into real life.

RussianLawOnline: To what extent has Russia changed and to what extent does it still live in the Soviet Union?

Tamara Morschakova: Obviously, our reality is not entirely new, things haven’t totally changed but it would be wrong not to recognise the changes that have taken place.

It is often argued that Russia cannot accept any legal institution that has not grown on its soil. I think this is wrong. Of course, there is dependence on political will. Attitudes to legal institutions vary, but legal foundations have been established, and even if they are sometimes denied such denial, in itself, causes a struggle.

Can Russia accept legal institution that has not grown on its soil?
 

I think it is very important to have legal ideals. Unfortunately, institutional reforms have not always been consistent. Old habits die hard – and often bog people down, hindering reforms but, I repeat, the situation would have been absolutely hopeless, if new legal principles had not been set out.

RussianLawOnline: Russian society is sending mixed signals about the shape of the justice system. On the one hand, there have been talks, including by heads of the state, about the terrible state of the judiciary. On the other hand, statistics show an increase in the number of applications to courts. What is the actual condition of the justice system?

Tamara Morschakova: I really don’t like the thesis which states that the growth of applications to courts indicates that they effectively carry out fair justice. These numbers only show that the competence of courts has expanded.

In Soviet times, judicial review was rare because the main appeal was made in a different way, not through the courts. There were other bodies to which one could complain. When it was declared that everyone has a right to appeal to a court on any matter it led to an inevitable increase in the number of court cases.

I don’t like the thesis that the growth of applications to courts indicates that they effectively carry out fair justice.
 

After all, today people don’t complain to the Party's Central Committee or to newspapers and turn to prosecutors much less frequently than was previously the case. This is the main explanation of these figures, though the heads of the judiciary tend to see them as confirmation of their good work.

These figures do represent achievements of the judicial system but they only relate to the caseload. This achievement cannot be denied. It is very important but it does not show more than that.

It is true that opinions about of the justice system vary. I think this is justified. Some people, especially the representatives of the judiciary, praise the way the system has progressed and, indeed, tremendous advances have occurred. The program of constitutional transformation, for instance, is easily comparable with the best traditions and most democratic constitutions in the world.

Another question is how this program is being implemented. It isn’t going very well. Steps were proposed to redress the situation. Yet these measures are offered by professionals, experts and representatives of human rights organisations. Whether they will be accepted as a matter of state policy depends on the authorities and so far they have not given a definite answer.

RussianLawOnline: In Russia, unlike East Germany, for example, there were no purges of judicial personnel. The judiciary has remained unchanged here. Is the judiciary up to the demands of modern Russia?

Tamara Morschakova: Changes like those in East Germany would have been impossible in Russia because of our size.

I believe that goals when they are correctly identified can change and re-programme activities. We need to address two objectives here: provide training to judges and increase their number. This is being done and there are state programmes.

Yet the problem lies elsewhere. Knowledge is important to bring about change in professional consciousness, but external setting is important too. Conditions are quite different now from what they were just a few years ago.

There is a rigid system of management in the judicial system, a sort of administrative pressure when what is instructed by the top is followed throughout the system. Any departure from what is prescribed is fraught with dangerous consequences for a judge. If a judge takes a decision that is cancelled by a higher body it is assumed that the judge did his work badly, he discredits the authority of the judiciary and he may be removed from office.

Any departure from what is prescribed is fraught with dangerous consequences for a judge
 

Rules that judges can be deprived of their status don’t comply with the principle of lifetime commission. The law has seemingly said that a judge can be removed from office only under certain circumstances, but it said this in such a way that almost anyone can be removed at almost any time.

Judges, then, pursue a different goal: not to embody the ideals of justice but to secure their jobs. In fear of a backlash from higher courts and the judicial community – which is supposed to protect judges, but it is actually tamed by the heads of courts - under pressure of this fear judges behave in line with administrative requirements. That's it.

We need to change the levers which are being used to control courts.

RussianLawOnline: Independence of judges is one side of the coin, but social control over the judiciary is also important. What about all these talks of judges serving commercial structures, these techniques to transfer the case to a particular court etc.? Is control of society over the judiciary fit for the purpose?

Tamara Morschakova: Of course it is not. And this is due to several factors.

Judges try their best to clear the courtrooms from the public. Information about their decisions is not always freely available, though the situation is improving - more decisions are now published on the Internet and legal databases. This practice sometimes, goes too far. For instance, some argue in favour of showing hearings online. I am strongly against this practice because judges would be impelled to behave like actors.

What you said about companies that drag a case to a particular court… It's certainly not easy. You need to have a strong legal reason in order to make this happen.

But it's not the point. I personally see the main threat to justice coming from the authorities, not from business. A judge will not dare decide a case in favour of a certain company if the authorities think differently. To put it bluntly, no matter how much money you pay, a judge will be afraid to take payment for a decision that is disapproved of by the authorities.

No matter how much money you pay, a judge won't take it for a decision disapproved of by the authorities
 

If the decision is not in line with higher authorities, the judge immediately falls under suspicion as corrupt and will be severely punished. He certainly won’t be able to retain his status. So I find it rather painful when members of the public and the media believe that business is a decisive factor of undue influence on courts.

On the contrary, the main concern should be orders that come from the top, through the heads of courts. It is not always possible to trace exactly where they come from, but it is clear that no judge would dare make a decision disapproved of by the system as a whole. This is the main problem.

In addition, such thing as the jury, a vaccine that would enhance the immunity of the justice system, virtually does not exist. The number of cases resolved by the jury is getting smaller. Around 600 or slightly more cases are decided by jury each year (these are criminal cases only, others cannot be considered by jury) and it is out of more than 1.1 million criminal cases heard in the courts of the first instance.

In fact, the jury is the saving idea which could help to bring about judicial independence. But this institution is still undeveloped. It couldn't win the favours of the highest echelons of state power.

Initially, the judiciary welcomed the institution. Judges immediately realised that it could free them from petty micromanagement executed over the judiciary by other branches of power - you can always say that a decision has been made by the jury.

Yet even judges do not support the institution nowadays because experience has shown that juries can easily be manipulated by other branches of state power. They know how to persuade, intimidate, bribe and even how to breach covertly the procedures relating to the selection of juries so that the board of juries can be replaced if they incline to acquittal. This happens so often that judges realise that they cannot defend their independence with the help of a jury trial.

There is obviously a need for the state will to rule out such practices.

RussianLawOnline: Is Russian business, as judged not by words but by deeds, interested in fair and independent courts of law?

Tamara Morschakova: The common view, unfortunately, is still that you are protected for as long as the state chooses to protect you. This view reflects reality.

Yet business is beginning to realise that a competitor may have more leverage with the state and then advantages may easily become weaknesses.

Therefore, as far as I can see the position of business in general, rather than that of specific companies or specific state-owned corporations, business is becoming aware of the need to ensure protection by law. Otherwise, a business certainly cannot evolve and will always strive to leave the country, which is very often the case.

Businesses cannot be blamed for the shortcomings in our legal and judicial development even if a particular business does not always operate ethically. To some extent, this happens because it cannot, or not always can, defend itself by law.

RussianLawOnline: Are the tensions between Russia and the European Court of Human Rights increasing?

Tamara Morschakova: I wouldn’t say that tension is on the increase. The relationship between the two jurisdictions, national and supra-national, is always built on the principle of subsidiarity. This is what the European Court of Human Rights states and it builds its relationships with other countries on the same principles.

We can give examples of what you call tensions - this is not quite the right word, but let’s use it - with the ECHR and Great Britain or Germany. Accordingly, tensions can also be found with Russia.

I must say that initially Russia was charged with such enormous potential respect for the ECHR (and this is reflected in the decisions of national courts, especially in the decisions of the Constitutional Court) but this initial level was an ideal one, or even excessive, and could not continue long in real life.

Initially Russia was charged with enormous respect for the ECHR
 

At one time Russia was so willing to meet the standards of the Strasbourg Court, and references to the positions of the ECHR in the decisions of the Constitutional Court are probably more common than in other countries. We even referred to those cases where Russia wasn’t a member. We considered ourselves bound by the practice of the ECHR in the very widest possible way. And in this sense, this was very helpful. We have advanced in our sense of law in the interpretation which the ECHR attaches to it.

But, of course, in some matters the courts may disagree, and motives for this may be different. The European Court upholds the pure law of the convention (though, of course, it examines the circumstances of a case), but it must protest against any deviation from stated rights and freedoms.

To take this controversial case, the Markin case, Russia was ready to reimburse this discriminated citizen who had been discriminated against as a parent, and actually paid various, very large damages. In this case, Russia believed that since damages had been paid, there was no reason to talk about violated rights. For the ECHR it is fundamental to abolish any discrimination of parents, either mother or father, in children’s upbringing.

And these, of course, are different positions. And I am not prepared to support Russia’s position in this case. On the contrary, there was no need for such ridiculous payments to compensate damages; instead we should simply have reinstated the equality of status.

Yet Russia’s reaction to the position of Strasbourg, was even worse, I think. I have spoken about this here in Russia, including the part about the Chairman of the Constitutional Court. All this talk about the ECHR’s decisions not being binding on Russia or about the possibility of Russia leaving the European Convention is not justifiable socially or in law.

Russia cannot leave the European Convention by any other way but changing the Constitution to another. And another constitution must be approved not simply by Parliament, but by a special body, the Constitutional Council. And until this happens no talk of withdrawal is possible. So this was a legally unsustainable answer and I would not like it to get heard.

On the other hand I would like to refer to the opinion of Jean-Paul Costa, the Chairman of the ECHR which he expressed here in Moscow. What tensions can we talk about, he said, if in dozens of its decisions the ECHR cites and supports the decisions of the Constitutional Court and their positions diverged in only one case? What principle difference does it make? I think none. It should have no fundamental significance for as long as the political course of Russia, aimed at integration with Europe, does not change.

RussianLawOnline: Does the ECHR understand Russian specifics?

Tamara Morschakova: You know, the ECHR has united so many countries and legal systems, that we must admit that, despite all the differences, the European Convention can identify the very fundamentals that can be unified. Not everything, but fundamentals.

Why should we look for flaws in the work of the ECHR? It has a mechanism of correction in its legal position. The ECHR itself stated that contradictory practice of higher courts is a violation of their social and legal mission.

I do not think that occasional differences should outweigh in the assessment of this unique mechanism created in Europe. No other international treaty, even those of universal value, has such an instrument of implementation as that of the European Convention. It is a huge achievement of the European continent. We must not destroy it.

 

February 10, 2011

 

 

Where Russia is now in relation to the roadmap drawn up in the early 1990s
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