article by Mykola Melnyk,
retired judge of the Constitutional Court of Ukraine, Doctor of Law, Professor
Appropriate sanctions have been applied to many Russian officials and legal entities directly involved in launching and waging a war of aggression against Ukraine, and criminal proceedings are being conducted against them. Meanwhile, such a response is actually bypassing the Constitutional Court (hereinafter – the CC) of Russia and its judges. Although their “merit” in the criminal encroachment on the territorial integrity and independence of Ukraine is special.
Recently, this, so to say body, of constitutional jurisdiction has issued another decision recognizing as constitutional the “agreements” on the admission of the Kherson and Zaporizhzhia regions, the so-called Luhansk People’s Republic and the self-proclaimed Donetsk People’s Republic to the Russian Federation.
Such decisions have been quite expected. First of all, there are actually no central state bodies in Russia – all these state duma, federation council, government, ministries, constitutional court, etc. are appendages of dictator Putin and at the same time components of a terrorist organization that calls itself a state. Secondly, the constitutional court of the Russian Federation already performed the function of legal consecration of the annexation of the territory of Ukraine, when in 2014 it recognized as constitutional the agreement on the so-called admission of the Republic of Crimea to the Russian Federation.
Then it generally worked superfast, fulfilling a political order overnight (Zorkin, permanent chairman of the CC of the Russian Federation, later admitted that at the request of the president, the judges actually produced the final document within two hours, which is an unprecedented case for the highest court of Russia). This time, he needed two days for a deep, as it were, legal analysis and a “comprehensive” justification of the legality of Russia’s annexation of four Ukrainian regions.
It should be noted that the decision of the CC of the Russian Federation during Russia’s annexation of the territory of Ukraine is of particular importance. If the military occupation of a certain Ukrainian territory means the actual loss of control by our state over it, and the so-called agreements on the accession of Ukrainian regions to the Russian Federation perform the function of political cover for such annexation – then the decisions of the CC of the Russian Federation artificially create the image of the legitimacy of this invasion and are aimed at endowing them with features of actors of international legal relations.
Without a positive decision of the CC of the Russian Federation, the legalization of Russia’s occupation of the territory of Ukraine is impossible. All these sham referenda on the territories occupied by the Russians, all this sumptuous signing of the so-called agreements between Putin and traitors/collaborators would have remained exclusively political and propaganda actions, if the CC of the Russian Federation had really evaluated them in accordance with the prescriptions of international law and the norms of its state constitution.
The fact is that the constitutional court of the Russian Federation formally plays a decisive role in the process of accession of foreign territories to Russia. According to the legislation of this country, the agreement on the entry of a new entity into its composition can be ratified only after the adoption of a decision by the constitutional court on the conformity of such an agreement with the constitution of the Russian Federation. This is the case when a body of constitutional jurisdiction with exclusively legal functions can play a key role not only in the development of a specific state, but also of the whole world.
If the CC of the Russian Federation had recognized as unconstitutional the so-called international agreements on the accession of four regions of Ukraine to Russia (for which there are all legal grounds), then this would radically have changed the situation with the Russian-Ukrainian war and its possible development into a world armed conflict. In the end, it would have saved Russia itself, which is obviously flying into the abyss, dragging other countries along with it. A total of ten people (that’s how many judges of the constitutional court of the Russian Federation passed the said decisions – apparently, unanimously) could have changed the course of history and made history, if they had conscientiously fulfilled their professional duties and given an adequate legal assessment to the mentioned “agreements.” At the very least, they could have shown professional dignity and civility and resigned, thereby blocking the adoption of a decision that is terrible in its consequences and shameful in every respect.
But the CC of the Russian Federation dutifully fulfilled its assigned role in the criminal encroachment on the territorial integrity and independence of Ukraine, the main participants of which are the following: the Russian army—traitors/collaborators—Putin—the CC of the Russian Federation—the state duma of the Russian Federation—the federation council.
By its decisions, the constitutional court of the Russian Federation has:
- formally and legally legitimized the war of aggression, which was started and is being waged by Russia against Ukraine;
- given legal significance to worthless contracts between Putin and impostors in the form of traitors/collaborators, creating the image of legality of the said process;
- opened the way to the ratification of these so-called agreements.
The decision of the CC of the Russian Federation is the legal basis on which this whole fictitious and completely false construction of the so-called voluntary joining of the regions of Ukraine to Russia and the formation of new subjects of the federation as part of the latter rests. However, this foundation itself is completely rotten for it is built from worthless legal reasons, false statements, and fabricated and distorted facts.
In order to justify its “constitutional and legal” decisions, the constitutional court of the Russian Federation cynically used obviously propagandistic slogans, which the Russian authorities for decades have been using to bombard Russians with and spreading to the whole world. By the way, they have been widely used with impunity by the leaders of the “russian world” movement in Ukraine, purposefully preparing the public ground for the so-called liberating invasion of the Russian invaders.
The constitutional court of the Russian Federation, which, according to its status, must exclusively resolve legal issues, has resorted to overtly political evaluations and political motivation, recognizing as self-sufficient and indisputable arguments for its “legal” decisions the public statements of Putin, his henchmen, traitors/collaborators, propagandists like Kiselyov, Solovyov, Skabeeva, the fake results of sham referenda, etc.
For the constitutional judiciary, such a position and such reasoning of the decision is not even a bottom, but an abyss. But for the Russian CC, this is the rule in its activities.
Evil Must be Punished
The reaction of the domestic authorities and the international community to the mentioned decisions of the CC of the Russian Federation should be prompt and as adequate as possible.
Start of criminal proceedings against judges of the CC of the Russian Federation for encroachment on the territorial integrity and inviolability of Ukraine.
In 2018, the Prosecutor General’s Office of Ukraine already notified the chairman and judges of the constitutional court of the Russian Federation of suspicion of committing a crime under Article 110 of the Criminal Code of Ukraine (assistance in deliberate actions committed with the aim of changing the borders of the territory and the state border of Ukraine, in violation of the order established by the Constitution of Ukraine, by representatives of the authorities with a prior conspiracy by a group of persons, which has led to grave consequences).
This was the legal reaction to the approval by the judges of the CC of the Russian Federation in 2014 of Russia’s annexation of the Autonomous Republic of Crimea. But it was not brought to a logical conclusion using all available criminal procedural and international legal possibilities.
Therefore, at present, the process of criminal prosecution of current judges of the CC of the Russian Federation should be treated as seriously and responsibly as possible. Of course, in the current situation, they will not really go to jail, but with the application of significant restrictions at the international level pertaining to such criminal prosecution, their life may be significantly complicated.
Application of personal sanctions by the state authorities of Ukraine to judges of the CC of the Russian Federation and their family members. Most likely, most Russian bearers of the constitutional mantle will not feel much about such a decision, but it should be accepted. Firstly, the position of Ukraine regarding one of the main executors of Russia’s imperial-aggressive policy will be clearly recorded. Secondly, it is not excluded that in this way it will be possible to bring anyone from these mantle bearers to justice.
The application of such sanctions by other states and the international community in order, inter alia, to make these persons inadmissible to the civilized world. Such sanctions will really hit the judges of the CC of the Russian Federation, who will have to spend their huge salaries and satisfy even greater ambitions only within the limits of their so-called immense motherland. They have to be loathsome all over the world, and their existence must take place within the boundaries of the reservation they have created under the name Russia.
Ignoring their scientific opus by the international scientific community would be a kind of sanction for the judges of the CC of the Russian Federation, who are mostly holders of scientific degrees and titles. In fact, it is about not recognizing them as scientists in general, which means not referring to their works, not involving them in scientific events and discussions, ignoring scientific events with their participation, etc. It would also be a blow to their ego, because they consider themselves to be well-known constitutionalists.
Exclusion of the CC of the Russian Federation from all international organizations of which it is a member.
Judges of the constitutional court of the Russian Federation are very fond of attending all kinds of international congresses, conferences and other events, giving “correct” speeches, going to receptions, banquets, and excursions specially organized for them, etc. It is necessary to deprive them of such pleasure and make the CC of the Russian Federation “outlawed”, i.e., it should not have a place in a civilized society.
Unfortunately, representatives of the constitutional courts of many countries were still not ready for such a step, considering it too strict. Moreover, some are categorically in favor of continuing the so-called constructive cooperation with the CC of the Russian Federation.
This, in particular, was revealed at the XVII Congress of the Conference of European Constitutional Courts, held in June 2017 in Batumi (Georgia). At this event, the CC of the Russian Federation held an important and respectable place, namely its representative presided over one of the meetings and delivered a report on the defense of the constitutional principles of the CC of the Russian Federation.
This forced me to literally win the floor up for a speech from the Ukrainian delegation in order of discussion and to put a question bluntly: why do the members of the Conference of European Constitutional Courts, despite all the European tolerance, not have a natural question whether such constitutional courts as the CC of the Russian Federation, which “sanctified” Russia’s annexation of the Ukrainian Crimea, allowed and justified the illegal seizure of the territory of Ukraine, are possible in modern democratic and legal Europe, and whether they can be members of respected international legal organizations?
That is, the representative of the Constitutional Court of Ukraine raised before a competent international meeting the question of the possibility of the constitutional court of the Russian Federation to be a member hereof. However, this question hung in the air, not only was there no proper reaction to it from the European colleagues, some of them also expressed extreme dissatisfaction with the violation of the calm atmosphere of the forum.
Unfortunately, the European constitutional community then did not see (or did not want to see) the true essence of the constitutional court of the Russian Federation and did not want to stop this legal monster. Perhaps it will “ripen up” to this after its latest decisions, which is an indisputable evidence of how the institutions created to limit absolute power are used for the very opposite purpose - to establish and maintain dictatorship, destroy the world legal order, start wars and encroach on the sovereignty of other states.
However, in September 2017, the constitutional court of the so-called great Russia was taught a lesson by small (in terms of territory and population) Lithuania. The Constitutional Court of Lithuania and its head at the time, Deinius Zhalimas, personally initiated the inclusion of all judges of the CC of the Russian Federation who, by their decision in 2014, contributed to the annexation of Ukrainian Crimea by Russia to the sanctions lists (with the establishment of an entry ban to Lithuania). Therefore, they were not allowed to participate in the IV Congress of the World Conference of Constitutional Justice held in Vilnius. The judges of the CC of the Russian Federation were not even sent an invitation, which greatly outraged head of this body, Zorkin. At a specially organized meeting with Putin on this occasion, he discussed the indignity of not allowing Russia to participate in such a high forum due to the fact that, as the Lithuanian authorities stated, the judges of the CC of the Russian Federation “pose a threat to the security of the Republic of Lithuania.” The Russian dictator generally called such a decision idiocy, but could do nothing. The Lithuanians have achieved their goal, even in spite of the great pressure exerted on them by then head of the Venice Commission, Gianni Buccicchio, together with the Russian authorities.
The next Congress of the World Conference of Constitutional Justice will be held in Indonesia in the coming days. There, it would be quite appropriate (considering the latest decisions of the CC of the Russian Federation, which testify to its final derogation from the law and its obvious discrediting the constitutional judiciary as such) to take into account the issue of the exclusion of the constitutional court of the Russian Federation from this international organization.
However, the Ukrainian authorities, primarily in the form of the Constitutional Court and the Ministry for Foreign Affairs, failed to seriously work in this direction in advance. Everything was limited to the message of acting head of the CC of Ukraine Mr. Holovatyi that the Ukrainian delegation will not take part in the work of the said forum due to the participation of the delegations of the CC of the Russian Federation and the CC of Belarus, as well as his apparently belated appeal to this world organization to terminate the membership of the CC of the Russian Federation.
Nevertheless, it is still possible and necessary to put Russia and its constitutional court in its place – and its place, considering its crimes, is next to North Korea. The sooner it is done, the better it will be for the whole world.
Read this article in russian and Ukrainian.