What has gone wrong with Constitutional Courts in Poland, the Ukraine and Russia?
The Russian State Duma passed in its final reading a bill on powers and formation of the country’s Constitutional Court as it was approved in the recent amendments to the Constitution. One of the most controversial and criticised amendments was the new rule prohibiting the judges from “criticizing” the rulings of the Constitutional Court “in any form,” as well as from “making their disagreement with decisions public in any form.” The justices of the Court will no longer “have the right to disclose dissenting or non-concurring opinions in any form or refer to them publicly.” From 1992 to 2019, judges of the Constitutional Court of Russia issued more than 400 dissenting opinions and opinions on the Constitutional Court’s rulings. A dissenting opinion may contain an alternative approach to resolving a legal problem and is conventionally seen as a democratic instrument in constitutional jurisprudence. Russian opposition leaders and liberal experts aggressively criticised the Duma and Putin’s administration for the amendment aimed at ‘shutting’ justices’ mouths.
However, subsequent events in Poland and the Ukraine demonstrate that restricting powers of Constitutional courts is perhaps not a completely unreasonable move.
Firstly, the Ukrainian Constitutional Court provoked an unexpected constitutional crisis by striking down key anti-corruption laws that were put in place at the insistence of Ukraine’s main donors, including the International Monetary Fund (IMF). In reply, the Ukrainian President Volodymyr Zelenskiy submitted an urgent bill to dismiss all 15 judges of the Constitutional Court. The head of the Constitutional Court called this bill ‘an attempt at an unconstitutional coup’. Ukrainian investigators also launched a criminal case against the Constitutional Court judges on the premise of plot to forcefully topple constitutional order or seize state power. As a result, the country is now at the edge of another majdan (maɪˈdɑːn, revolution).
Secondly, Poland’s constitutional tribunal quite unexpectedly ruled that abortion due to foetal defects is unconstitutional, rejecting the most common of the few legal grounds for pregnancy termination in the predominantly Catholic country. Poland’s abortion laws were already among the strictest in Europe, but the Constitutional Tribunal’s ruling will mean an almost total ban. This judgment was criticised by the Council of Europe, Amnesty International and numerous women’s rights activists. The scale of the protests suggests even some normally loyal supporters are repulsed by the ruling. The government was compelled to delay an official publication of the court ruling, which would have brought the ban into effect, but it is seen as a temporary solution.
The situation in the Eastern Europe demonstrates that in this time of turbulence even rulings of Constitutional Courts, that quite far from ‘down to earth’ justice, may provoke server public protests and even revolutions. Arguably, restricting constitutional justice in the ‘Russian way’ is not completely a bad thing, especially in 2020.
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