Mr Valery Dmitrievich Zorkin is the first and the current President of the Russian Federation Constitutional Court.

Mr Zorkin was born on 18 February 1943 into the family of a military serviceman in the village of Konstantinovka of the Primorsky Region. He holds advanced degree of Doctor of Juridical Sciences and is Professor of Law.

In 1964 he graduated from the Moscow State University School of Law having basic law degree Jurist; between 1964 and 1967 he lectured at the Moscow State University School of Law and between 1967 and 1979 he was assistant professor there.

In 1967 he defended his candidate’s dissertation on the legal doctrines of Boris Chicherin, and in 1978, at the Institute of State and Law he defended his doctoral dissertation «Positivist theory of law in Russia (historical and critical study)».

Between 1979 and 1986 he was a Professor of the Department of Constitutional Law and Theory of State and Law at the Academy of the USSR Ministry of the Internal Affairs. From 1986 he was a Professor of the Department of State Legal Subjects of the High Juridical School by Correspondence of the USSR Ministry of the Internal Affairs.

Between 1990 and 1991 he was the leader of the legal experts�?group working for the Constitutional Commission of the Congress of People’s Deputies of Russia.

At the Fifth Congress of People’s Deputies of Russia, 29 October 1991, following the nomination by the Deputies�?Group «Communists for Democracy», he was elected as a judge of the Constitutional Court of Russia, having acquired 757 votes, and, on 1 November, at the first sitting of that Court he was elected, by a secret ballot, as the President of the Russian Federation Constitutional Court with unlimited tenure.

On 6 October 1993 he resigned as the President of the Russian Federation Constitutional Court, having retained his office of a judge of the Constitutional Court.

On 21 February 2003 he was elected to the post of the President of the Russian Federation Constitutional Court and on 21 February 2006 he was again re-elected to that high post.

Mr Zorkin has authored a number of monographs, including such books, as «Power and Law» and «Rule-of-Law State».

 

 

Mr Vitaly A. Portnov: The first question that I would kindly like to ask you, dear Valery Dmitrievich: what is the role of
the European Convention for the Protection of Human Rights and Fundamental Freedoms in the Russian law?

Mr Valery D. Zorkin: This is not just another question; this is a question that raises tremendous subject. The Convention contains certain vision of rights and liberties, and this vision became a component of the legal fabric of the European countries. Even should it happen so that Russia failed to ratify the Convention, our country had to build its legal system through the prisms of the Convention’s principles. In our country �?according to the Russian Federation Constitution �?individual rights and liberties are acknowledged and secured under universally recognised principles and norms of the international law, i.e. essentially under the standards fixed in the Convention. In modern-day conditions, the Convention in fact transforms into sui generis all-European constitution of human and constitutional rights and liberties, while in Russia, who is a part of the European legal arena, the Convention is an integral part of our legal system. At the same time, the principle of the State sovereignty implies the supremacy of the national constitution. The judiciary based on it is the primary and basic means to protect human and constitutional rights and liberties, while supranational courts and namely the European Court of Human Right are supplemental subsidiary instruments. The mission of the Strasbourg Court is not that it has to shift the burden of national States to protect human rights onto some supranational institutions, but first and foremost, to see that by the means of precedential decisions uniform apprehension and application of the of the Convention provisions are followed by the domestic courts, thus «taking rights back home». It follows that the Russian courts are under obligation to secure implantation of the Convention onto the fabric of the Russia’s legal arena.

Mr Vitaly A. Portnov: Does it imply that the courts directly apply the provisions of the Convention?

Mr Valery D. Zorkin: Of course, this is the command of Article 15 (4) of our Constitution and the Federal law of 1998 on ratification of the Convention. The same is true as regards the legal positions of the European Court, which construes the provisions of the Convention and fills these provisions with life and real content. It is the European Court that develops uniform all-European standards to protect human rights and freedoms. One might say that the Strasbourg Court performs the function of a conductor of a big composite orchestra comprising judiciaries of national States. It is often said that Russia is bound only by those judgments or decisions by the European Court that relate to Russia. This does not necessarily mean that the Court’s other judgments or decisions have no binding force for Russia. Judgments and decisions by the Strasbourg Court construing provisions of the Convention are of universal precedential value for all countries participating in the Convention and legal approaches pertaining to the interpretation of the Convention are the rules of binding nature. It is for that reason, we in our judgments very often refer to judgments or decisions by the European Court delivered not only with respect of Russia alone.

Mr Vitaly A. Portnov: It is even more important in view of the fact that textually the «catalogue» of rights guaranteed by the Convention by and large is the same as the list of rights guaranteed by the Russian Constitution�?/p>

Mr Valery D. Zorkin: In our Constitution this list is even more extensive in view of inclusion of social rights into it. It should be noted that the actual content of the rights guaranteed by the Convention, in many instances, is much wider than their literal meaning due to the interpretation by the European Court. As an example, let us take Article 1 of the Protocol No. 1 to the Convention (securing property right). The European Court acknowledged that even a mere claim might amount to possessions and treated as such (this approach was first formulated by the European Court as far back as on 9 December 1994 in its judgment in Stran Greek Refineries and Stratis Andreadis v. Greece.

Mr Vitaly A. Portnov: I would appreciate hearing your opinion about how the Convention is being applied by the Constitutional Court of the Russian Federation and by the entire judiciary of the country?

Mr Valery D. Zorkin: Our courts apply, first of all the Constitution and the statutes; however in the legal system of the Russian Federation, the Convention has a special place if compared with other treaties our country is privy to. The Convention fixes certain level of the legal development of the European civilisation, which is accordingly reflected in the practice of the national States and in their constitutions: the process might be called unfolding and specification of the rule of law principle impliedly contained in the Convention. And in that context, the Constitutions of the European States �?as regards the sphere of comprehension of human and civil rights and liberties �?are in their essence identical to the Convention. By interpreting provisions of the Constitution the constitutional courts implement the Convention at the constitutional level; thus, constitutionalisation of the rights and liberties is effected at the all- European level within the framework of the unified legal arena of Europe. Where the Constitutional Court finds that a statute is in breach of the Convention the Court comes to a conclusion that such statute is unconstitutional. Principles of the international law are not always expressly formulated in international treaties and there is always vast room to interpret them. Regrettably enough, we are sometimes criticised for «mere imparting of the Strasbourg Court’s legal positions» and for the fact that the Constitutional Court itself often assumes lawmaking roles, even rather eminent jurists accusing us of that. Doctrinal theory in Russia does not contain an unambiguous
conception of the question, whether judgments or decisions by the Constitutional Court are precedents per se. Indubitably, however, that in the settled practice of judgments or decisions by the Constitutional Court formulating the latter’s legal positions do have precedential value, as the relevant judgments or decisions by the European Court do. The Strasbourg Court does not proclaim in its judgments or decisions that a particular statute is not compatible with the Convention, the Court merely states that there were specific violations rights and liberties. However if certain rights were infringed not only by an individual decision to apply law but by a particular statute as well, such statute is in breach not only of the Convention, but of the Constitution as well. Therefore, while reviewing a statute as to its compatibility with the Constitution, the Constitutional Court uses precedential judgments or decisions of the Strasbourg Court. We use them as supplemental arguments, as the criteria and landmarks And it seems to me that such use enhances judicial safeguards of the rights and liberties of Russian citizens. The burden upon judges�?conscience and legal conscience is always enormous, but the risk to commit an error is decreasing due to the Convention and judgments or decisions of the European Court. They help to get to the very heart of the law. It seems to be of moreimportance to understand �?in each individual case �?whether the legislature violated the requirements of the Constitution while introducing some restrictions upon human and civil rights and liberties, since introducing such restrictions the legislature cannot but encroach upon the very essence of the law. This is why it is necessary to refer to the Convention and to the jurisprudence of the European Court.

Mr Vitaly A. Portnov: The question to follow was asked to the President of the European Court too: what is a precedent for them and what is a precedent for us? I am especially interested in the matter of construction of a precedent. How do you view case-law of the European Court in the context of our reality?

Mr Valery D. Zorkin: Courts of Russia are guided first and foremost by the Constitution and the statutes. A Russian court may not set up a precedent in the way and meaning it is done in the Anglo-Saxon system of law. No such opportunity is bestowed upon courts of continental systems of law, which the legal system of Russia belongs to. I believe neither the Strasbourg Court has that opportunity, since for the Court the Convention is the criteria and the main reference point of its judgments. But, again, much room for interpretations is still there. The European Convention and the Russian the Constitution are defined concretely in judicial decisions. The Constitutional Court, while interpreting a provision of the Constitution, develops its own legal position, which acquires its law-making and precedential value for all subsequent decisions. The difference between the European Court and the Constitutional Court is that Strasbourg assesses the facts of the case and rules, whether in an individual case there was a decision taken by a law-applying authority, including by a court, in violation of human rights. Meanwhile, the Constitutional Court, handling exclusively the questions of law, determines, whether the rights and liberties were violated by a statute applied in an individual case. Strasbourg, essentially, assesses the lawfulness of the law-applying authority’s actions, while the Constitutional Court assesses the lawfulness of the statute applied in an individual case, i.e. it ascertains, whether the legislature overstepped constitutional boundaries, whether it overdid in restricting human and civil rights. Legal positions formulated by the Constitutional Court in a judgment finding constitutionality or unconstitutionality of a statute, applied in an individual case, do have �?as the judgment itself �?binding force and may not be overruled either by
the legislature, or by a law-applying authority, including by
other court.

Mr Vitaly A. Portnov: Is there any risk to confuse the two situations?

Mr Valery D. Zorkin: One has to be very careful in assessing whether there is a typical case before us under the examination or still the same aspects of legal relations that were examined in an earlier case, upon which there was a judgment with certain legal positions already delivered. However, even typical cases should not be treated mechanistically. Life is progressing, circumstances change and the same model in different circumstances works completely different. For that reason, the legal positions developed earlier may be made more specific, may become enriched and even may modify, whenever necessary. Lacking that, necessary adjustment of the provisions of the Constitution to the necessities of life becomes impossible. The court should be a flexible instrument of development and not to become a tool of stagnation. Most certainly, all this requires presence of the legal culture of high level, including appropriate level of judges�?legal conscience.A judge should realise that while balancing constitutional values in an individual case she or he must strike an appropriate balance. This is not so simple to do. It was in that connection that I was already discussing the need for a legal reform in Russia and first of all the need for transformation of professional legal conscience. If such reform does not happen, then no Strasbourg case-law, no organisational changes of the domestic judicial system, no Constitution of Russia will be there to help, and we will be doomed to see an expansion of illegal and anti-legal phenomena, such as fundamental judicial errors, non-enforcement of court judgments, shadow economy, corruption, etc. Pursuant to the requirements of the Constitution, the responsibility for the state of affairs in the realm of protection of human and civil rights and liberties is the Russian State, including the courts, which are called upon to provide that protection to the full extent and most efficiently. It was in that light that I was expressing my thoughts related to the need of the increase of the domestic judiciary’s potential and of the use of our domestic remedies applied before going to Strasbourg.

Mr Vitaly A. Portnov: Your statements caused quite stormy reaction in the mass media�?/p>

Mr Valery D. Zorkin: �?Just because they were communicated by the mass media in a wrong way, as if I was attempting to block the access to Strasbourg to our citizens.

Mr Vitaly A. Portnov: And what was the true picture?

Mr Valery D. Zorkin: I was just saying that our courts handle millions of cases annually, perhaps the same number of cases handled in all other European countries taken together. Naturally, judges do err, but considering such great number of cases they have to proceed with, there are surprisingly few judicial errors. And this does credit to our quite young judiciary of the new Russia. And I would like to be its advocate. However, at the same time, 20 thousand applications lodged with the European Court by Russian citizens is an unprecedentedly high number: it is one fifth of all applications brought to Strasbourg.
This fact obligates us to intensify the activity of our high courts, the Supreme Court and the High Court of Arbitrage. Only an idler was not criticising the current state of affairs in the courts of general jurisdiction as regarded the supervisory review procedure. First of all, I mean the existence of multiple supervisory review instances, uncertainty of time-limits for reviewing and quashing of court judgments and decisions by way of the supervisory review procedure, ambiguity of grounds for such quashing, a possibility of repeated review of final court judgments �?all of it is quite incompatible with either with the stability of court judgments or with the provisions of the Constitution related to the right to judicial protection, while the latter must be full and efficient. In that context, the Constitutional Court, as is well known, recently delivered a judgment related to the matter of the supervisory review procedure in civil proceedings. In the judgment, the Constitutional Court obligated the legislature to reform the system of the supervisory review procedure within the shortest possible time, to make it duly presentable in accordance with the right to fair trial implied by the Constitution of the Russian Federation. But we cannot do entirely without the supervisory review procedure. Russia is a huge country comprising over 80 fullstatus political subdivisions of the Federation and this diversity �? without the function of the supervisory review securing uniformity of court practices �?poses a real risk of ambiguous interpretation and application of the laws, a risk of legal cacophony. The high judicial instances are called upon to secure uniform application of the laws, the supervisory review procedure being in conformity with the requirements of the Constitution and the Convention. Half of applications lodged by Russian citizens with the Strasbourg Court relates not to the quality of court judgments but to non-execution of them, i.e. essentially to the defects in the activity of the executive. I wonder why non-execution of court judgments somewhere in Krasnodar or Irkutsk should become the subject-matter of a Russian citizen’s complaint lodged with Strasbourg? Is not it preposterous? Domestic courts are quite capable to deal with the task by rigorously penalising for non-execution of court judgments. When the domestic judicial system �?first of all the system of judicial supervisory review �?shall be made to meet European standards, very many Russian citizens will see no need in the European Court. Then the influx of applications to Strasbourg will decrease naturally, not forcefully, of course. Analysis of applications coming from Russia shows that currently the European Court has to spend its most time and resources not upon resolution of matters of principle, which would meet its mission as the supranational and subsidiary body of justice in Europe. All fall victim to that. As it was recently stated by Mr Jean-Paul Costa, the President of the European Court, «the European Court, whose activity is built upon the principle of subsidiarity and prevention of violations, can only welcome resolution of as many cases at national level as possible».

Mr Vitaly A. Portnov: In other words, suggesting to reform the supervisory review system you provide «fraternal help» to the European Court, which is under avalanche of complaints.

Mr Valery D. Zorkin: Yes, indeed so. We cannot but think of it. The Strasbourg judges are our colleagues and we all are engaged in one business, human rights protection. The Constitutional Court of Russia would not come about without the European Court, without the constitutional courts of the European countries. The experience suggests that once interaction of these courts is broken, once these courts fence off and erect a kind of a new «iron curtain», then an isolated domestic judiciary would suffocate. We are resolving common tasks being located in common and opened European legal arena. It should be noted that the Convention for the Protection of Human Rights and Fundamental Freedoms and hence jurisdiction of the Strasbourg Court has already stepped across the geographic bounds of the European continent; legal Europe is the space from Reykjavik to Vladivostok�?/p>

Mr Vitaly A. Portnov: True, Europe is there where the Convention is effective.

Mr Valery D. Zorkin: Yes, constitutional security of a human being and a citizen should be alike in Russia, in Germany and across the entire area of the Convention’s applicability. This is the task of our Constitutional Court and the task is unattainable without interaction with the Strasbourg Court.

Mr Vitaly A. Portnov: Thank you, dear Valery Dmitrievich, for providing us with your detailed questions to our questions.

August 2007, Moscow

Translation to English.
© «Human Rights. Case-Law of the European Court
of Human Rights» Journal

 

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