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Tamara Morshchakova: "We must put an end to the present lawlessness" [MBKh-Media]

posted 21 May 2018, 11:17 by Rights in Russia   [ updated 21 May 2018, 11:17 ]
6 May 2018 

An extract from an interview with Tamara Morshchakova, laureate of the Moscow Helsinki Group prize for expertise and scholarship in the sphere of human rights, by Zoya Svetova, who has been awarded the MHG prize for journalism that promotes human rights.

Source: Moscow Helsinki Group [original source: МBKh-media]

Retired Constitutional Court Judge Tamara Morshchakova spoke with journalist Zoya Svetova about why the authorities have no need of an independent court, what kind of judicial reform there should be, and how an investigative judge might have helped Aleksei Malobrodsky, had the law about him already been passed.

Tamara Georgievna, we are entering President Putin’s new term. During the three previous ones, there were many discussions about the need for judicial reform. Nothing substantive ever came of them. Will there be something now?

This is not a question for me. I’m no good at guessing. The sphere we’re talking about, the sphere of judicial activity, has long required certain transformations. In this sphere, no one can express satisfaction with it, not even relatively high, let alone hundred-percent satisfaction. Everyone is dissatisfied with it. Moreover, the president has issued a number of instructions to the Human Rights Council and the Supreme Court to increase judges’ independence. So that measures that would allow judges to be truly independent are being discussed by a great many.

What is sad in this context is the fact that they are often being discussed by politicians rather than professionals. And this brings with it very bad consequences for the level of experts’ qualifications and proposals. That is the first thing. The second, of course, is that there is a definite structural tie between courts and the law enforcement agencies with which courts interact that lies at the base of their activity. And these multiple structures oppose each other. Often in this opposition they offer by way of measures something that has significance that is the opposite of reforms—aimed not at improving something about judicial activity but at making life easier for themselves, evading reproaches against them, and in essence, in many situations, even saying goodbye to what corresponds to justice as such.

There are examples like this coming not only from agencies that are ill intentioned from the point of view of society, such as the agencies of investigation and trial and the prosecutor’s office but also from the judicial system itself. After all, the plan’s main developer is the Supreme Court. And the Supreme Court frequently behaves in precisely this manner.

One can cite as an example its disagreement with proposals from the Human Rights Council, although there have been instances when, after many years, certain proposals from the Council that had previously been rejected by the Supreme Court have then taken up again by it—as is now happening with proposals regarding the introduction of investigative judges. There are also proposals that the Supreme Court itself has written, which are aimed right now, for instance, so that reasons are not given in civil case decisions, hearings of cases are not held publically, and everything takes place without the parties’ participation and ends with the issuing of a judicial decision based on written documents even without reasons given.

Here, actually, is an example of this kind of odious approach to judicial reform. And it is conditioned by the fact that the goals of reform are changing. Reform has not remained on the rails of guarantees of fair justice but has been shifting to a completely different plane.

“Old mistakes are being announced as new ideas”

Which plane, for example?

For example, the plane of the economics of courts’ efforts, because the burden on judges is great. To economize on the state’s inevitable expenses for organizing the judicial process. But sometimes it simply looks like encouraging laziness or refusing to make extra efforts. Why try if the courts don’t decide legal conflicts? In judicial reform, these trends represent a great danger. And they are joined by the fact that many present-day reform ideas have been taken from the past, even though they did not vindicate themselves at all. And now these old mistakes are being announced as new ideas. That is, we are basically going in circles.

Among these kinds of ideas we can cite the shift to an elected court—elected directly by the populace. This idea is often heard in human rights circles as well, but more in political ones, of course, because it resonates very well and accessibly in key of populism. Also with a populist ring are the ideas of lustration, of replacing all judges, of destroying the body of judges, of disbanding the Supreme Court, of eliminating—people actually write this!--the Constitutional Court as unnecessary, and of cutting the number of judges on the Supreme Court from 170 to 19, as on the American Supreme Court.

And all this without any understanding of the fact that the U.S. Supreme Court cannot be an example for the development of our Supreme Court because the U.S. Supreme Court is a constitutional jurisdiction and is comparable only to our Constitutional Court. We have rejected the effective idea of court specialization, which has been implemented all over the world. I can cite many countries where there are different specialized jurisdictions—Germany, for example. They have five, and each is headed by its own High Court. America simply has a lot of specialized courts. For example, there is even a court for veterans affairs. We have as a main goal ensuring uniformity of practice (whether correct or incorrect is unimportant), not achieving fair justice. And of course, if we are to insist on these initial ideas, the failure of the next stage in judicial reform is inevitable.

I would like to offer two ideas relating to our approaches to judicial reform. The first, of course, is that we mustn’t step on old rakes but must try to adapt the proper formulas to the new era. The second is that we mustn’t promote new mistaken ideas. Unfortunately, they can already be discerned among all the proposals under discussion, including in comparison with the failed steps at reforming judicial activity taken in other legal systems. Foreign steps may not be an example in everything either. Across Eastern Europe—across the territory of the former Eastern European alliance of states that included the USSR—the judicial reform begun has swung to its opposite stage, the stage of counter-reform. And in practical terms, in many instances, this has led to the destruction of the independence of judicial authority or simply to a nonindependent court. So that ideas have to be sought, but not along those lines. [...]

Translated by Marian Schwartz