Friday, November 11, 2011

Russian Government Teaches Constitutional Court a Law Lesson

In hearings in the Russian Constitutional Court in a sex discrimination case, Mikhail Barshchevksy an attorney for the government, sharply criticized the Court's “wrong practice” of closing legislative loopholes. “The presence of a loophole does not make a norm unconstitutional,” explained Barshchevksy to the Court. “The law [on the Constitutional Court] does not permit you to create new norms.” Barshchevsky believes that the Constitutional Court, upon finding a loophole, may only propose to the government and the legislature to rectify the norm. The same position was expressed in a previous case by Mikhail Krotov, the President's representative in the Court. “The Constitutional Court may not make up deficiencies in laws, substituting itself for the legislature.” Meanwhile the Constitutional Court, the highest authority in interpreting the Russian Constitution, seems to have a different opinion on the matter. “If the legislature created a loophole violating constitutional rights of citizens, then the Constitution applies directly, and the norm is to be found unconstitutional in that respect,” stated Constitutional Court Chairman Valery Zorkin. For example, in 2010 the Constitutional Court closed a loophole in civil procedure legislation authorizing courts to reconsider their judgments “on newly discovered circumstances” where the judgment is in contradiction with a new decision of the European Court of Human Rights. The outcome of the two cases under consideration will show whether the Court is ready to change its position as the government urges.

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