Vanity fair

-- 08 December 2009 --
TEXT: J. Vermin
PHOTO: roadrunner -


Self-irony - looking at yourself with some minimal honesty and accepting that you may not be perfect - is a sign of strength as admitting own limitations requires confidence and vigour. If talks of modernisation are ever to get down to something real, then the ability to see who you are and where you are going is the sought-after commodity.

Unfortunately, it is not what we, lawyers, do very often. And the higher we stand on the hierarchy the more likely we are to take ourselves too seriously.

Two judges of the Constitutional Court, the celestial body that deciphers the Constitution to mere mortals, have been ostracised by peers for speaking out their concerns about the state of the judiciary in the country.

In an interview with the Spanish newspaper El Pais Justice Vladimir Yaroslavtsev said that during Putin’s presidency and that of his successor Dmitry Medvedev, the courts have ‘turned into an instrument of the executive branch’, legislature is ‘paralyzed’, and ‘the security agencies do whatever they like, and there is nothing courts can do but endorse their decisions.’ ‘I feel,’ he sniped, ‘as if I am standing on the ruins of justice.’

In a closed plenum his fellow judges accused Yaroslavtsev of a breach of ethics and law, which do not permit ‘anything that can diminish the authority of the courts’, ‘questioning decisions that came into force’ or ‘criticizing professionalism of colleagues’.

The decision was not unanimous. Justice Kononov dissented in two ways, in substance and form: ‘Yaroslavtsev,’ he said in an interview, provocatively titled 'There are no independent judges in Russia', ‘was whipped in the best tradition’.

The idea that judges should not wash their dirty linen in public is rooted in the perception - and there is something rather narcissistic in this notion - that it would degrade the authority of the courts and lead to ‘legal nihilism’. Indeed, it would. Yet the collective ego of the judiciary is not the main concern of the law.

The relative value of the infallibility of the judiciary in the eyes of what is dubbed the general public and, on the other hand, the right of the public to know what is going on within the system had been examined by the European Court of Human Rights just six months before Justice Yaroslavtsev decided to speak.

Olga Kudeshkina, a Moscow judge at the time, was dismissed from the profession after she had made critical remarks about her boss, the president of the court, and the judicial system as a whole. She won the case with a feeble majority of four to three and the ECHR grudgingly admitted that the right of society to know the truth about its legal system - and from the judges too - outweighs important but instrumental restrictions on the freedom of expression of the judiciary.

There is, it appears, no consensus in the legal community on what judges should or should not broadcast. Are statements of facts that disgrace the system or a particular judge permitted? Can a member of the Constitutional Court share his views, an opinion – as subjective as it may be, with society? And, finally, can we have a working court system, yet not deceive ourselves that it is infallible?

As for Justice Vladimir Yaroslavtsev, he was forced to resign from the Council of Judges; Justice Anatoly Kononov is leaving the Constitutional Court altogether. They have confirmed this but did not elaborate.



On self-irony, lawyers, and value of discussion.