Russia’s Contested Constitutional Review

—William Partlett, Melbourne Law School

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2019, see here.]

In my posts over the course of this year, I will explore the significance of constitutionalism in post-Soviet Eurasia (previewing aspects of a book I am writing on this subject). This understudied region spans the fifteen independent countries that were once part of the Soviet Union. On the west, this region covers Ukraine, Moldova, Belarus, and the three Baltic States.  To the south, it encompasses the five “stans” of Central Asia as well as the three countries of the Caucasus. And, to the north and the east, it comprises the successor state to the Soviet Union: Russia.  Although they share a common Soviet past, these countries have developed vastly different constitutional systems and approaches.   

To start this examination, I will explore the significance of constitutional review in post-Soviet Eurasia’s largest country: Russia.  I will do so by describing a recent Russian Constitutional Court (RCC) decision (17 January 2019) involving a dual Russian and Netherlands citizen, who owned a large share of a media company (link in Russian here). The lower courts ultimately held that he was unable to challenge an important corporate decision involving his media company because of a Russian law limiting the rights of foreign citizens (including dual citizens) to own shares in media companies. He challenged this decision in the RCC, arguing that the law’s legal restriction unconstitutionally limited his constitutional right to 1) property, 2) judicial protection, and 3) freely distribute information.

In its decision, the RCC argued that the law’s limitation on the ownership rights of foreign citizens broadly addressed a legitimate governmental aim: Russia’s “information security”. In support, the RCC cited a presidential decree outlining a “Doctrine on Information Security” which stressed the importance of legislative control over the media for Russia’s stable and peaceful development. The Constitutional Court, however, found the law invalid on the grounds that the scope of the law was uncertain and undermined individual property rights. The Court ordered the legislature to rewrite the law in order to clarify certain aspects, including which individuals and entities are restricted from owning shares in Russian media entities and what rights they have.

More than two weeks later, however, the youngest judge on the RCC, Konstantin Aranovsky, issued a scathing dissent. Strongly criticizing the RCC’s deference, he argued that the law’s limitation on foreign ownership of media companies was unconstitutional because the legislature never specified the precise threat that those with foreign citizenship pose to Russia’s informational security. He argued that “xenophobia”, “isolation,” and “panic” alone cannot be the basis for the limitation of rights in a Constitution that aspired for Russia to join “the world community.”

This case exemplifies the contested nature of Russian constitutional review. A majority of the RCC is willing to invalidate laws for uncertainty (neopredelennost’) or if they limit the rights of property owners. But it will do so in a highly deferential way, deferring to a broad conception of national interest and asking the legislature to rewrite these laws in accordance with its reasoning.  The Chairman of the Court, Valery Zorkin, has justified this judicial approach on the importance of a cooperation between the Court and the legislature. In a 2014 article entitled “The Constitution Lives through Law,” Chairman Zorkin explained how the RCC engages in “joint coordinated work” to improve legislation in order to “maintain the authority of the legislator.”[1] The RCC’s reasoning in this recent case supports this approach.  It explains that improving the legal certainty of the law will help to “maintain confidence in the law and the stability of civil law relations.” Furthermore, it expresses concern about the “risks” of an unclear and potentially overbroad law on the property rights of those in the media business. 

This deferential approach to constitutional review, however, is contested. This is not the first time that Justice Aranovsky has criticized the RCC’s deference in dissent; in 2015, for instance, he criticized the RCC for allowing police searches simply on the basis of “love for authority (nachalstvoliubiya).”  Furthermore, legal organizations—including Moscow’s Institute for Law and Public Policy whose amicus brief was relied on by Aranovsky in dissent—have criticized the RCC’s deference for mistakenly relying on the good faith of the legislature in redrafting laws (link here). Finally, constitutional law academics—particularly younger ones with comparative experience—are critical of the RCC’s deference, pointing out that it misapplies proportionality review.

This case therefore reveals an ongoing debate about the nature of Russian constitutional review.  Its outcome is hard to predict.  Pessimists caution it could only be a brief flash in the pan before the Constitutional Court itself is abolished or weakened. Optimists suggest it might portend a generational change that will bring more energetic constitutional review—Justice Aranovsky is almost ten years younger than the next youngest Justice. Only time will tell.    

Suggested citation: William Partlett, Russia’s Contested Constitutional Review, Int’l J. Const. L. Blog, Feb. 13, 2018, at: http://www.iconnectblog.com/2018/02/russias-contested-constitutional-review/

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[1] 17.12.2014, https://rg.ru/2014/12/18/zorkin.html.