The 2020 amendments to the Russian Constitution significantly affect the status of the Constitutional Court and its judges. The amendments decrease the number of judges from 19 to 11, provide for the new procedure for dismissal of judges and vest the Court with the power to check the constitutionality of draft laws. This paper discusses the grave consequences of those amendments for the independence of the Constitutional Court and for those who seek justice before it.
The paper addresses the issue of recent Russian constitutional amendments, and focuses on their procedural, rather than substantive dimension. It analyses the way the proposed amendments were announced, the time frame and the manner in which they are supposed to crystallise into constitutional provisions. The Venice Commission opined that the procedures of constitutional change should not be “open to controversy”, “applied too hastily” and “without democratic discourse”, because any of these “may undermine … the legitimacy of the constitution itself”. The author claims that the ongoing amendment process has been tainted by all of the mentioned pitfalls: starting with the obvious intention to circumvent the existing procedures and finishing with the idea to conduct the public vote on amendments.
The paper addresses the question of when and why constitutions are amended under authoritarianism. The recently proposed amendments to the Russian constitution raise fundamental legal questions with regard to the separation of powers by introducing a new constitutional organ – the State Council – without defining its competences. On the other hand, the extensive reshuffle of competences from and to state institutions – including the State Duma, the Federation Council, the Prime Minister, the Presidency and the Constitutional Court – suggests that the reform serves as a complex act of balancing the interests of key stakeholders in the ongoing succession process within the elite. This would not be achieved by a simple abolition of the presidential terms limits. The case of Russia thus contributes to a rising body of literature on the meaning of constitutions in non-democratic settings.
Initial declarations made in the State of the Nation address in January 2020 implied amendments to Article 15(4) of the Constitution according to which international law prevails over federal statutes, insofar as the intention was to get rid of the primacy of international law once and for all. Yet the draft adopted by the Duma only elevates to the constitutional rank the already existing possibility to declare specific international judgments unconstitutional and unenforceable. However unfounded it is in international law, it has only concerned 2 cases. But it’s still early to sigh in relief. It’s unclear whether the new powers would still be concentrated in the Constitutional Court. The real danger is that any Russian court may be empowered to declare international judgments contrary to the Constitution, leading to barely manageable decentralisation of non-compliance. It is though clear that ECHR will not be the only victim, as ITLOS or EAEU Court may equally be concerned.