Dadin and the Constitutional Court

<< No 5 (238), 6 February 2017 >>

•  Lawyer Sergei Golubok talks to Radio Svoboda about the Constitutional Court hearing in the case of Ildar Dadin  •

Vladimir Kara-Murza, Sr. [presenter]: We have the lawyer Sergei Golubok on the line. Sergei, Tatiana [Voltskaya, Radio Svoboda correspondent in St. Petesrburg] said that your speech today was sensational. Tell us, please, what was the atmosphere like at the hearing in the Constitutional Court?

Sergei Golubok: We were fairly clear about the position we wanted to take. We wanted to drive home our points because we were not planning on quietly and peacefully discussing a law that, by its very existence, violates the Constitution, and in violation of the Constitution virtually revokes the constitutional right to the freedom of public assembly and the freedom of peaceful assembly. We took up the principled position that the criminalization of what is nothing more than participation in public events, if such a participation did not result in any other consequences that are dangerous to the public, violates both the Constitution and the norms of international law, and indeed everything else into the bargain.

But the authorities took a completely different point of view, as one might expect. Personally, I was very struck by the position taken by the representative of the federal Human Rights Ombudsperson who unexpectedly supported the law. He decided that everything is fine, that this article is constitutional. And this is a 180-degree reversal of what the previous ombudsperson Ella Aleksandrovna Pamfilova wrote in her annual report for 2015. For me this is the biggest piece of news, that our Human Rights Ombudsperson is now taking a different point of view. […]

The article of the criminal code in question establishes criminal liability for the exercising of constitutional rights without any other public danger or threat to public order or safety. The punishment is disproportionately large and not differentiated. A court will consider as evidence rulings on violations of administrative law that were arrived at without the participation of a lawyer acting for the defence. A court can now punish a person twice for one and the same act. The punishment is an attack on individual rights and undermines the essence of the constitutional law on freedom of assembly. So everyone has complaints about this article, various scholars. Some don’t agree with the article’s wording in one respect, and others have other objections to it.

We believe that in principle the article violates the Constitution. However, in our presentation to the Court we put forward a large number of different arguments: in one place it violates the Constitution for this reason… You don’t want to hear arguments about human rights? There are questions on the lack of differentiation of the punishment to be handed down, questions about the Criminal Code – that is, about criminal law. You don’t want to hear citations from European sources? Here are African ones. We have a good number of alternative arguments. There are plenty for the Court to choose from. Clearly, there are other possibilities as well. The article is not at all straightforward. […]

Vladimir Kara-Murza, Sr.: Sergei, how substantial are the arguments from those who insist on the constitutionality of this law?

Sergei Golubok: Of course I believe that their arguments are groundless. But this is the appellant’s position in this case. I did not hear anything from representatives of government bodies that I wasn’t expecting to hear. The altogether predictable arguments about how we need to protect the rights of those who might be affected by a public event, that we need to worry about the police who are on duty, and so on. Well, altogether predictable and understandable arguments that all governments have been putting forward in every country for the past hundred or so years. This is why courts exist – so the balance of interests between individuals and public authorities can be kept so that no one is harmed. I think that this case will in a very important way establish whether or not there are such courts in Russia. Because this law is too draconian, this article is too harsh to be kept in the Criminal Code. […]

Vladimir Kara-Murza, Sr.: Sergei, did the judges ask you any questions which suggested that they favoured a particular position, either yours or that of the government agencies?

Sergei Golubok: The judges did not put any questions to the applicant’s side, and so we all concluded that our position was perfectly clear and understandable.

They did however put questions to the representatives of the state authorities concerning certain specific aspects of Article 212.1, whose provisions are worded in such a way as to invite a number of different interpretations. For example, criminal proceedings were initiated against Ildar Dadin before the judgment on the charges against him involving administrative offences had entered into force. I don’t think anybody disputes the fact that this should not have happened. What we absolutely do not want is for the Constitutional Court to find that Article 212.1 is constitutionally acceptable, and that it merely contains a number of shortcomings which can be remedied. Our firm belief is that this law should be repealed in its entirety rather than merely amended. […]

In my opinion, the questions put by the judges never provide any useful indication as to the decision that will ultimately be taken by the Court, and the same is true in this case. The Court will decide as it pleases. Which side do they favour? There were 15 judges there today, many of whom will hold differing opinions and some of whom may seek to influence the others. My personal view is that there are more than two possible outcomes, or in other words a judgment either for or against the constitutionality of Article 212.1. The Constitutional Court frequently chooses a third outcome by finding a legislative provision to be constitutional, but clarifying its “constitutional and legal meaning” and thus restricting the scope of its application. Under some circumstances this means that the applicant’s case can be re-examined, since it becomes clear that the relevant article of the Criminal Code or another law was applied with a meaning other than the “constitutional and legal meaning” clarified by the Constitutional Court. The range of options open to the Constitutional Court is broader than a simple yes/no decision, and we need to wait and see what decision it takes. It will be a fundamentally important decision, since as it stands Article 212.1 curtails and negates constitutional rights owing to its over-exactness. Our Constitution directly prohibits the adoption of laws of this kind. […]

Vladimir Kara-Murza, Sr.: Sergei, if the Constitutional Court finds in your favour, will this mean that Ildar is immediately released?

Sergei Golubok: No, it will not mean an immediate release. It will mean that the Presidium of the Supreme Court will need to re-examine the criminal proceedings.

Vladimir Kara-Murza, Sr.: But from a different angle?

Sergei Golubok: If the Constitutional Court finds that Article 212.1 is unconstitutional, the only possible course of action open to the Presidium of the Supreme Court will be to halt the criminal proceedings. If Article 212.1 is found to have a “constitutional and legal meaning”, the Presidium of the Supreme Court will need to re-examine the case materials in the light of this finding. […]

Vladimir Kara-Murza, Sr.: Sergei, is it possible now to organize telegrammes to the Constitutional Court and raise a wave of public resentment?

Sergei Golubok: I think it would only be a waste of money to send telegrammes. In my opinion, if the telegrammes are sent, it should be to the Federal Penitentiary Service, because support could have a significantly greater impact there. Before the Court met today, Ildar’s position was much advertised and discussed. The Court heard about this. We are certain of this. And it’s necessary on the one hand to grant the Court the opportunity to write and deliver its ruling, and on the other to support Ildar by helping to verify that he’s being kept in acceptable conditions, that his rights aren’t being violated.

For example, in a few days in Moscow a district court will hear an appeal against the decision to relocate Ildar from Karelia to the Altai region. He is appealing against the Federal Penitentiary Service’s decision. There will be, most likely, other court hearings too. But in so far as concerns the Constitutional Court, I think that Ildar Dadin had his say today. Not in person, but through his representatives, but he nevertheless had his say.

Vladimir Kara-Murza, Sr.:  And when might the time come to make an application to the European Court of Human Rights in his case?

Sergei Golubok: The application is already at the European Court of Human Rights and that Court will review it in its own good time. Nikolai Zboroshenko, a lawyer from Public Verdict Foundation, is representing Ildar’s interests there. That application concerns an even larger number of aspects, concerning not only Ildar’s sentencing, but also other aspects of his case. And the European Court of Human Rights, in its own time, will consider this application. […]

Vladimir Kara-Murza, Sr.: Sergei, what are the [Constitutional] Court’s next steps?

Sergei Golubok: The Constitutional Court has withdrawn to deliberate. And we await a declaration in a few weeks’ time. […]

Vladimir Kara-Murza, Sr.: Sergei, does it seem that Russia is drawing closer to isolationism?

Sergei Golubok: I wouldn’t want to jump the gun by talking about that. Representatives of state agencies refer to the experience, as they affirm, of civilised Western countries when trying to justify the use of a “firm hand.”

But the pendulum swings one way, then another. And the task that stands before all of us is to ensure that, when the pendulum swings back in the opposite direction, we not lose that chance, and that we know what to do, and that we have a precise understanding of how to reform the court system and legal system. We have to make sure that we don’t miss the opportunity, as, in my opinion, we missed the opportunities in the 1990s when nothing was done to change criminal procedure or the penitentiary system — so that we aren’t just giving existing structures new names. That’s what we need to prepare for, we need to think about it and discuss it today.

Vladimir Kara-Murza, Sr.: Sergei, you’re referring to Russia. But in the other 14 republics everything has changed. The Baltic countries have become civilised. We didn’t want just freedom for Russia, but for everyone…

Sergei Golubok: In the Baltics they eliminated the courts that existed in the Soviet era and rebuilt the judicial system from the ground up, basing the new system on legislation as it had existed in 1940 [at the time the Baltic states were incorporated in the Soviet Union]. And that enabled them to overcome the “birthmarks” of the repressive Soviet system. That didn’t happen in Russia. […]

Moscow Helsinki Group (from Radio Svoboda 24 January 2017)

(Excerpt from “Is the Constitutional Court against Dadin?” Radio Svoboda, discussion hosted by Vladimir Kara-Murza, Sr., 24 January 2017)