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By John Helmer, Moscow

In a ruling of Russia’s Constitutional Court, issued on July 18, fifteen out of sixteen judges ruled that a state of lawlessness now prevails in the country, in which the constitutional rights of citizens to have courts adjudicate government decisions, with evidence and reasoning, have been abolished. 

The court ruling came in the dismissal of an appeal by 20 members of the St. Petersburg legislative assembly and citizen organizations against the transfer of St. Isaac’s Cathedral from state property to the Russian Orthodox Church.  Led by the court chairman Judge Valery Zorkin,   the court has ruled “the complaint does not meet the acceptance criteria applicable to such appeals to the Constitutional Court”. There was no elaboration of the criteria or legal reasoning.   

Just one judge dissented. In a lengthy opinion, Judge Yury Danilov called the actions of the Church, the city government, and district courts in St. Petersburg unconstitutional and unlawful because they failed to produce and review evidence of how the cathedral transfer had been decided.  Danilov also attacked Zorkin and the other judges for violating the court’s own statutory rules because he said they had considered no evidence; evaluated no legal arguments; and given no reasons for their decision. The lower courts had acted prejudicially, Danilov wrote. The majority of the Constitutional Court had acted “prematurely”.

The ruling by Russia’s highest court cannot be appealed. It follows by six months the disclosure by President Vladimir Putin that he operates a special telephone line to Zorkin in which the court’s opinions are discussed in advance. According to Putin:  “As Mr Zorkin can tell you… I call him maybe not every day but fairly often to ask what he thinks about some regulation that is going to be adopted by legislators or the Government.”

This week,  a Kremlin spokesman was asked to say if the president had spoken to Zorkin about the St. Isaac’s Cathedral case. The spokesman replied he has “no information about that.”    

Zorkin met Putin on December 16, and then again on March 14.  Zorkin’s spokesman at the court, Marina Mavrina, refuses to say if the two of them have discussed the St. Isaacs case.

The law on the Constitutional Court requires the seating of 19 judges on the bench.  At present, only 16 are active.   Danilov took his seat on the court bench in November 1994, following the Kremlin decision to reopen the court after President Boris Yeltsin closed it for ruling against him during his clash with parliament in October 1993.  Zorkin and two other judges remain from the original 13-member court appointed in 1991. Yeltsin arranged a new constitution and stacked another 6 members on the bench when the court resumed in 1994.  Zorkin is due for retirement in seven months’ time.

In seniority Danilov ranks sixth of the 16. All the others voted for the dismissal of the St. Isaac’s challenge. Moscow lawyers say Danilov’s dissenting opinion is unprecedented for the sharpness of its criticism of Danilov’s fellow judges.   

Left: Judge Yury Danilov at President Putin’s annual Kremlin reception for the court, December 6, 2016.  Right: Danilov in July 2017 – source:  https://www.kommersant.ru/doc/3371431 For background on Danilov, read the court biography.

The decision to transfer St. Isaac’s Cathedral to the Church was taken by the President and the head of the Church, Patriarch Kirill, last November. They obliged the Governor of St. Petersburg, Georgy Poltavchenko, to reverse his earlier decision blocking the move.  A citizen’s protest movement then began gathering signatures for a petition for a city-wide referendum to decide on the cathedral’s status by a majority of votes. The petition has drawn more than 200,000 signatures.

The 50-seat St. Petersburg Legislative Assembly has repeatedly postponed a vote on certifying the referendum, in effect killing it by delaying a vote past the date for handover scheduled for December.  Judges in the city’s district courts have dismissed the application of opposition deputies and citizen groups to halt the transfer of the cathedral until it complies with laws governing state property.

For details of the stage-management of the cathedral handover by Putin and Kirill, read this  and this.  Poltavchenko’s office refuses to answer direct press questions on why he changed his mind and who changed it for him.

The appeal to the Constitutional Court was lodged on April 27 by city deputy Boris Vishnevsky (pictured below), Pavel Shapschits, an activist on historical preservation issues in St. Petersburg, and 18 others.  Read their submission in full

Centre: Boris Vishnevsky of the Yabloko Party in the chamber of the St. Petersburg Legislative Assembly

They told the Constitutional Court they were appealing against the refusal of local courts to require the cathedral  transfer  to comply with state property laws, including the November 2010 statute on the transfer of state property to religious organizations. These laws, they argued, provide for the rights of citizens to challenge administrative decisions transferring state property to the Church by requiring government apparatchiki to justify their actions in court.  

Vishnevsky’s group also argued that the administrative award of the cathedral to the Church was illegal because it had failed to comply with the laws and regulations requiring explicit approvals from the St. Petersburg municipal authorities, including the city’s State Property Committee; the city’s  Committee on Culture; and  the St. Isaac’s Cathedral Museum, a state institution. Not only had they  all been bypassed,  the protesters argued, but there was also no legal contract between the city and the Moscow Patriarchate for the cathedral lease,  and no publication of the required papers authorizing the handover.

The appeal asked the Constitutional Court to rule that the lower courts had failed to recognize that the objecting citizens had constitutional rights to test the lawfulness of the cathedral transfer which had been denied by 2010 statute, so they challenged the constitutionality of that law.

The Court gave Vishnevsky and his group no hearing for oral argument, and there was no reply from either the St. Petersburg government or the Church. The Court judgement, drafted by Judge Nikolai Bondar  and signed by Zorkin,  was published on July 18. It runs to 19 pages. Read it here

The first ten pages make a summary of Vishnevsky’s case against the transfer of the cathedral, and a recital of the provisions in the Russian Constitution and other laws allowing the rights of objection to be tested in court.

Then in a single paragraph on page 11, the fifteen judges dismiss the appeal.

There is no legal argument; no review of the lower court decisions; no assessment of the evidence of how the cathedral handover was decided and by whom. All Zorkin and his majority say in this  paragraph is that the appeal doesn’t meet “the criteria of admissibility to qualify  such appeals to the Constitutional Court of the Russian Federation according to Part 2 of Article 97 of the Federal Law on the Constitutional Court, so it cannot be considered by the Constitutional  Court of the Russian Federation.”

The reference is to this article and its second provision:

Source: http://www.ksrf.ru/en/Info/LegalBases/FCL/Documents/Law.pdf

Since the Constitutional Court ignores the lower court cases against which the appeal was submitted, it is difficult to understand the summary sentence dismissing the case. According to Russian lawyers, the Zorkin majority has violated the court’s own rules, according to Article 75 of the court’s statute.  Among other things, this requires judges to include in their published decisions “(7) actual facts and other circumstances, determined by the Constitutional Court of the Russian Federation…[and] (9) arguments supporting the decision passed by the Constitutional Court of the Russian Federation and, where necessary, arguments refuting the assertion of the parties.”

Sergei Bakeshin (right), a St. Petersburg lawyer who drafted the challenges in the city courts and the Constitutional Court, accused the Zorkin majority of legal deceit. “Directly the KS [Constitutional Court] couldn’t refuse consideration of the appeal because the violations allowed by the courts are too obvious. But equally, the KS hasn’t dared to give the grounds for revision of the judicial rulings on account of the new circumstances. As a result the decision they issued is vague.”

Following the Court’s preemptory dismissal, the remaining eight pages of the judgement are the arguments of Judge Danilov, explaining why he regards the majority decision to be wrong. Danilov’s argument is eight times the length of the Zorkin majority’s presentation, except that Zorkin provides no argument at all for the dismissal decided on page 11.

Left to right:  Patriarch Kirill; Judge Zorkin.

Danilov accuses his fellow judges of violating the court rules by failing to “articulate the subject matter…reasoning and conclusions.” He judges the St. Petersburg city courts to have acted  unlawfully and unconstitutionally because they had failed to summon the parties to a hearing on the evidence and on the legal arguments; because there had been no judicial findings of the evidence in the case; no review of the laws and regulations;  and no “equality of the parties” before the court.

Danilov accused Governor Poltavchenko of failing to comply with the required regulations for deciding on the cathedral transfer, and then acting illegally to ignore the citizen objections, public protests, and the petition for referendum.  Danilov also wrote that the Church had failed to meet the required rules for applying to the municipal government for the handover of the cathedral. Because, Danilov argued, the lower courts had failed to make “studies of these factual circumstances and made an assessment  as part of a full court procedure, the courts of first and appeal instances have not been able to come to a reasonable conclusion about the presence or absence of violations of the rights and legitimate interests of the applicants.”

“The [lower] courts have not established the absence of the violation of rights and legitimate interests of the plaintiffs,” Danilov declares, “thus leaving a number of circumstances having a significant, if not decisive, importance for the proper resolution of the stated requirements… Thus, there is every reason to believe that the right to judicial protection recognized and guaranteed according to the universally recognized norms of international law and the Constitution of the Russian Federation in respect of the applicants had been violated.”

Shapchits did not alert his supporters to the Danilov dissent until  July 29.

This week Shapchits said: “I totally agree with Judge Danilov. He pointed out that the procedure for  transfer of the cathedral had been started without the application of the Russian Orthodox Church, and that the [St. Petersburg] district courts ignored this fact. Judge Danilov thinks the absence of the Church application and of a court hearing of both sides — the Church and the opposition —  is a violation of [our] constitutional rights. The Constitutional Court decided the issue by evasion.”

Although the Court ruling was issued on July 18, the Russian press has ignored it – with the exception of Kommersant, whose St. Petersburg correspondent, Anna Pushkarskaya, reported  the Danilov dissent on July 29.  She quoted three independent Russian legal experts as agreeing with Danilov that the Court has failed to defend citizens’ rights to have the courts review administrative decisions.

Telefonnoye pravo or telephone justice is widely recognized as a feature of Russian court operations, so Putin’s candid acknowledgement last December  that he telephones Zorkin regularly went unremarked in the Russian press. The opposition in St. Petersburg to the Church’s takeover of St. Isaac’s do not accuse Putin, Kirill and Zorkin of colluding. The opposition believes the government pressured Governor Poltavchenko  into accepting the Patriarch’s demand for the cathedral although noone wishes to be quoted as saying so.

Left: Kirill with Putin in November 2016. According to Church media, Putin was secretly baptized in 1952 by Kirill’s father, then a priest at the Transfiguration Cathedral of Leningrad. Left: Zorkin with Putin, December 2016.

 “When the Government or ministries and departments adopt decisions,” Putin said at his last reception  for the Constitutional Court judges, “the question of their constitutionality is very often raised and discussed. As Mr Zorkin can tell you, I call him maybe not every day but fairly often to ask what he thinks about some regulation that is going to be adopted by legislators or the Government. In any event, this helps to reveal the potential of our Constitution, which is very important.”

“I would like to emphasise the importance of the Constitutional Court’s decisions on human rights. The Constitution guarantees the equality of all citizens before the law. However, there is also a broad constitutional framework that formulates clear requirements.”

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