Legitimizing Authoritarian Transformation

In the early 1990s, the Constitutional Court of Russia (RCC) was viewed as an important institution for protecting human rights and facilitating the democratic transition. However, the good intentions of the constitutional drafters were insufficient to overcome the country’s totalitarian legacy and practices. An examination of the RCC’s evolution over three decades reveals two significant trends: Firstly, the RCC transformed into a machine for legitimizing laws designed to dismantle political competition, civil society, and civil liberties. Secondly, this dynamic did not prevent the RCC from losing its independence and political weight after the constitutional amendments of 2020.

In this blog post, I will provide a brief overview of the RCC’s most controversial decisions over the past 30 years, along with the measures taken to destroy independent constitutional review in Russia.

The RCC’s role in undermining democracy in Russia

Looking back, we can see that nearly every unpopular and anti-democratic legislative decision over the last 30 years has been legitimized by the RCC. Initially, activists held high hopes for its intervention. However, it gradually became apparent that the RCC consistently sided with the government on critical issues related to democratic development.

Based on the RCC decisions issued during the presidency of Vladimir Putin, we can chronologically trace the erosion of democratic foundations in Russia and the RCC’s role in this process. The following 25 decisions were chosen due to several factors, such as: their contribution to the consolidation of power, their significant impact on the political system, their use in suppressing opposition, their restriction of civil rights, their effect on the state of civil society, and their endorsement of international law violations.

1. Extension of Governors’ terms of office (12-P/2002): The RCC allowed incumbent governors to serve for a third and fourth term;
2. Abolition of the elections of Governors (3-P/2005): The RCC approved the first step in the establishment of the so-called “power vertical”;
3. Restriction of the right to be elected for bipatrides or citizens with foreign residence permits (797-O-O/2007): This decision excluded the possibility for the famous Soviet dissident Vladimir Bukovsky and other opposition activists to run in the presidential election;
4. Restriction of the right to be elected for authors of materials deemed “extremist” (757-O-O/2010): The RCC legitimized another tool to prevent the opposition from participating in elections;
5. Introduction of the “municipal filter” rule for gubernatorial candidates and the right of the president to consult with political parties and self-nominated candidates (32-P/2012): Following the reinstatement of direct gubernatorial elections, this rule allowed the authorities to moderate candidate nominations and prevent strong opposition candidates from running;
6. Penalties for “unauthorized” assemblies (4-P/2013): The RCC allowed the further tightening laws increasing fines and mass prosecution of peaceful protesters;
7. Restriction of the right to be elected for persons convicted of grave and especially grave crimes (20-P/2013): This decision was used to prevent Alexey Navalny from being admitted to the presidential elections in 2018 (13-O/2018);
8. Assessing the possibility of enforcing ECtHR judgments (27-P/2013): This marked the first step towards the RCC’s permanent role in legitimizing Russia’s non-compliance with international obligations;
9. The “Treaty” on the acceptance of the Republic of Crimea into the Russian Federation (6-P/2014): The RCC approved the annexation of Ukrainian territories;
10. The Law on Foreign Agents (10-P/2014): This ruling catalyzed stricter laws, leading to the self-dissolution of numerous regional human rights initiatives, the forced liquidation of major human rights NGOs (such as “Memorial”, Moscow Helsinki Group, “Sova”, “Man and Law”, “Sakharov Center”), the designation of individual citizens as “foreign agents”, the introduction of the list of “affiliated persons”, and the criminal prosecution for non-compliance with the law;
11. Justification of liability for “propaganda of non-traditional sexual relations” (151-O-O-O/2010, 1718-O/2013, 24-P/2014): The RCC consistently encouraged intolerance towards LGBT+ people, leading to stricter legislation, the declaration of the non-existent “International LGBT Movement” as an extremist organization, and a complete ban on all activities, funding, and support for any LGBT organizations in Russia;
12. Approval of the municipal reform with regard to the definition of local self-government models by regional authorities (30-P/2015): The RCC backed the widespread abolition of mayoral elections;
13. Prohibition on voting rights for prisoners (12-P/2016): This decision marked another phase in the ongoing issue of non-compliance with ECHR judgments;
14. Justification of blocking bank accounts of citizens listed as “extremists” (1741-O/2016): The RCC legitimized the use of financial repression against the opposition;
15. Non-payment of fair compensation awarded by the ECtHR to former YUKOS shareholders (1-P/2017): The RCC reaffirmed its support for the Russian authorities’ evasion of their international obligations;
16. Restriction of the right to be elected for probationers (2508-O/2017): This decision was used to prevent Alexey Navalny from participating in elections;
17. Changing the border between the Ingush and Chechen Republics (44-P/2018): The RCC once again approved the exclusion of local communities from debates on regional matters. This decision sparked widespread protests in Ingushetia and culminated in the criminal prosecution of opposition members;
18. The Law on “undesirable organizations” (3154-O/2018): The RCC approved the termination of the work of several international NGOs in Russia, as well as the prosecution of citizens for cooperating with such organizations (2978-O/2023);
19. Limitation of foreign participation in the media (4-P/2019): The RCC endorsed the authorities’ decision to exclude foreign citizens and companies from influential business, socio-political magazines, and TV channels;
20. Merging municipalities without the prior consent of the population (2955-O/2019): This decision favoured further centralisation of power and the further exclusion of the population from local politics;
21. Ban on public events near government buildings if they “pose possible threats” (33-P/2019): With the consent of the RCC, the authorities have shielded themselves from seeing any public discontent;
22. Amendments to the Constitution (1-Z/2020): The RCC approved a constitutional reform aimed at the further concentration of power in the hands of the president;
23. Deprivation of Russian citizenship for “terrorist” and “extremist” offenses (183-O/2021): The RCC ignored the contradiction between the law and the direct prohibition of this sanction in Art. 6(3) of the Constitution. Subsequently, the grounds for citizenship deprivation were expanded in 2023 by the new law “On Citizenship”. It now includes convictions for various “political” crimes, such as “spreading false information about the Russian military” and “participation in an extremist organization,” as well as a vague suspicion of “posing a threat to national security”;
24. “Treaties” with the so-called DNR, LNR, Kherson, and Zaporizhzhya regions of Ukraine (36-P, 37-P, 38-P, 39-P/2022): The RCC once again approved the annexation of Ukrainian territories;
25. Responsibility for “discrediting the Russian army” (1454-O/2023 and others): the RCC sanctioned military censorship and allowed prosecution for criticizing the authorities.

Thus, the RCC has never really been an independent institution. It did not condemn a single law that undermined the democratic government and curtailed the political participation of the general public. Starting with the subversion of gubernatorial elections, the RCC progressively restricted electoral rights, subordinated local communities to the federal center, silenced independent voices in civil society, denied international obligations, and ultimately endorsed the usurpation of power and violation of the UN Charter.

A Constitutional Paradox

Surprisingly, the more fervently the RCC participated in legitimizing unconstitutional laws, the more rapidly it lost its actual influence in the political system and even formal guarantees of its independence.

Following the constitutional amendments of 2020 and extensive changes to the Law on the Constitutional Court, it received additional “political” powers:

• Preliminary control of draft federal and regional laws (clause 5.2 of Article 3);
• Authority to determine the enforceability of decisions of international (interstate) bodies or courts, as well as foreign or international arbitration courts (clauses 3.2 and 3.3 of Article 3);
• Participation in the procedures of lifting the immunity of the former President (paragraph 5 of Article 3).

Simultaneously, citizens’ opportunities to access constitutional justice were significantly reduced. The most critical changes included the following provisions:

• The option to appeal to the RCC only after exhausting “all other domestic judicial remedies” (paras. 2 and 3 of Art. 97) – which means that in general applicants have to go through four court instances;
• The ability for the RCC to arbitrarily refuse to hold open hearings in a case if “the nature of the issue raised and the circumstances of the case” do not disclose “a clear need for oral presentation of the position of the applicant or other parties” (part 1 of Article 47.1);
• A prohibition on applicants and other trial participants from accessing the minutes and transcripts when a case is reviewed without a hearing (part 4 of Article 59).

At the same time, the status of the RCC and its judges underwent  radical changes:

• The number of judges was reduced to 11, with the RCC able to function with only 8 judges (part 2 of Article 4). The President is only obligated to initiate the filling of a vacant position if there are fewer than 8 judges (part 4 of Article 9);
• Deputies of the State Duma and members of the Federation Council are no longer permitted to nominate candidates for the RCC– this right has been transferred to the committees of the chambers of parliament (part 1 of Article 9);
• When preparing a case for a hearing, a judge-rapporteur can request inspections and written professional opinions only with the Chairman of the RCC’s agreement (part 2 of Article 49);
• Judges may no longer criticize “in any form whatsoever” the RCC’s decisions (part 4 of Article 11), publicize their disagreement with a decision to refuse to accept an appeal for consideration (part 3 of Article 43) or the final decision (part 5 of Article 70), or publicize a dissenting opinion or publicly refer to it (part 4 of Article 76);
• The powers of judges can be terminated not only by the RCC itself, but also by the Federation Council on the proposal of the President (part 3 of Article 18).

Consequently, the 2020 amendments ultimately transformed the RCC into an institution for legitimizing unconstitutional decisions of the authorities. It is now as inaccessible to citizen appeals as possible. At the same time, the judges are under strict dependence on the chairman and the President, and they are unable to express even the slightest disagreement with the majority.

What’s Next?

Under the current regime, the RCC will continue to mimic constitutional justice and act as a “watchdog” of the Presidential Administration. In other words, it will speak out on the most pressing issues upon request, lending an air of constitutionality to legislative decisions. It will also continue to review minor cases that indeed could have been adjudicated through the Supreme Court to correct legal mistakes. At the same time, its political weight will remain extremely low: the State Duma systematically fails to implement a lot of its decisions, and the courts use the RCC’s caselaw very selectively.

Given these circumstances, if the political vector changes, the RCC may become a historical relic due to its complete loss of credibility and purpose. None of the judges and the representatives of the legal society have ever objected against assaults on its independence – from the abolition of the election of the President of the RCC by judges in 2009 to the prohibition of criticizing RCC’s judgments in 2020. The example of the RCC once again shows that concessions in favor of the political establishment not only destroy one’s reputation, but can also lead to institutional collapse. The subversion of constitutional justice and the Constitution itself is a very hard burden for any future democratic reforms.