For nearly three years already, the Day of the Russian Constitution, which used to be celebrated on December 12th, is not a holiday anymore. Now it is a day of remembrance for the original Constitution that was adopted in 1993. This Constitution was obviously not perfect and was tailored, like a French-patterned suit, to a specific Russian president; but, at the same time, it enshrined principles such as separation of powers, the supremacy of international law, human rights and freedoms as the supreme value, and the independence of courts and judges. It granted enormous powers to the Russian President, but Boris Yeltsin, for whom the document was written, did little to extend the list of presidential powers envisaged in it—and for that reason the Boris Yeltsin era is known as the period of “weak presidentialism.” His successor has taken a different route—the route of persistent strengthening of the power vertical, which reached its ultimate expression in the 2020 constitutional amendments. By the power granted by these amendments, the now nearly irremovable president holds all branches of power tightly in his hands1.
The initial design of the 1993 Russian Constitution provided for a powerful president, which is unsurprising: Russia’s constitutional model is largely based on the 1958 Constitution of the Fifth Republic in France—a classic ad hoc constitution. It was tailored to a specific charismatic leader—General Charles de Gaulle. This Constitution is sometimes referred to as “Caesarist,” since the powers it granted the president of France were similar in scope to those of the Roman emperors. It’s no surprise that it was the French model, tailored to a powerful president, that was eventually adopted by the drafters of the 1993 Russian Constitution.
In the Russian constitutional model, the president is not simply a powerful figure—he is the main organ of state power. Article 10 of the Constitution, which established the separation of state power in Russia into legislative, executive, and judicial branches, does not mention the president. But Article 11, which lists the organs of state power, includes four branches of power—and it is the president that is mentioned first. Analysis of the text of the 1993 Constitution, even in its original version, leaves no doubt that the president is the main actor and the most important organ of state power. At the same time, the president is not even a part of the system of separation of powers.
This conclusion is also reflected in the Russian legal doctrine. Many Russian constitutionalists and legal scholars share this point of view. In the “Commentary on the Constitution of the Russian Federation” (edited by Valery Zorkin and Leonid Lazarev) it is noted that “while remaining outside of the bounds of the traditional triad of branches of state power, the president integrates Russian statehood, and de jure and de facto he is ‘present’ in every branch of power.”2 Noted Russian scholar Vladik Nersesyanz wrote back in 1999 that the “system of separation and interaction of powers established by the 1993 Constitution is asymmetric and imbalanced. It also displays an obvious inclination towards the powers of the president and his dominating role in the administration of state affairs, while other branches look weak compared to the powers of the president. The Constitution grants the president a very broad scope of rights, which, in essence, encompass all spheres and directions of organization and administration of state power in the country.”3 Nersesyanz pointed out that “a number of constitutional provisions indicates that presidential power seems to be placed out of the framework of the classic triad. It constitutes a separate power that sits above this standard triad.”4 According to the prominent legal scholar Oleg Kutafin, the constitutional provision establishing that “the president provides for the mutually coordinated functioning and interaction of the state power organs”5 envisages a specific institute of presidential power that sits above all other branches. Noted constitutional law experts Mikhail Krasnov and Ilya Shablinskiy point out that “by excluding the president of the Russian Federation from the triad of branches of power, the Constitution places him above them.”6
Sadly, the text of the Constitution is not free of the Soviet legacy, and Article 80, Part 3, is the best example of that. According to provisions of this Article, the Russian president determines the guidelines of the state’s domestic and foreign policies. This is a very odd norm that only weakly complies with the principle of separation of powers, and which has, unfortunately, drifted from the Soviet constitutions into the post-Soviet one. A similar norm7 can be found in the first Soviet constitution, which established that the general course of all foreign and domestic policies, along with other issues of state importance, was under the competence of the All-Russian Congress of the Soviets and the All-Russian Central Executive Committee of the Soviets. In the 1977 Constitution of the Soviet Union, the course of both domestic and foreign policy was determined by the Communist Party8. In the late 1980s, after the adoption of amendments to the 1978 Constitution of RSFSR, the determination of the country’s domestic and foreign policies was attributed exclusively to the RSFSR’s Congress of the People’s Deputies, the highest authority of state power9. This Soviet norm has outlived the Soviet Union itself, and, following the adoption of the new Russian Constitution, the determination of guidelines of domestic and foreign policies became the power of the Russian President.
Krasnov and Shablinsky view this presidential power as a time bomb, due to which the constitutional construction of power was stripped of the existing equilibrium, and a significant imbalance towards the presidential powers was established on the constitutional level10. The Russian Constitutional Court did not see the imbalance; on the contrary, it established a legal position under which the guidelines of the state’s domestic and foreign policy determined by the President were made binding first for the Russian government11 and then for all bodies of state power.12
Vague and insufficient constitutional provisions13 regulating the procedure of formation of the Federation Council—the upper house of the Federal Parliament—provide us with another example of the Soviet legacy in the Russian Constitution. Many pieces of early Soviet legislation were formulated in a very ambiguous language, and such flexible wordings constituted unlimited grounds for arbitrary interpretation of these vaguely formulated norms. As a result of ambiguity and insufficiency of the norms that were meant to regulate the procedure of formation of the Federation Council, this procedure was repeatedly modified according to the political will and came to the point where it strongly disagrees with the principle of separation of powers, because the President takes an active part in the formation of the Federation Council. Now he can appoint as many as 30 members of the upper house, which now has 178 senators. Seven of these presidential appointees can be appointed for lifetime14.
The Russian Constitution was repeatedly amended, and most amendments consistently strengthened the powers of the president—and restricted the powers of the other branches. A number of amendments reflected changes of the federal structure of the Russian Federation: acceptance and forming of new subjects of the Federation (Crimea and Sevastopol in 2014, and Luhansk and Donetzk People’s Republics, as well as Zaporozhye and Kherson oblasts in 2022) and merging of existing subjects of federation (emergence or expansion of such subjects as the Perm, Krasnoyarsk, Kamchatka, and Zabaikalsky territories, as well as the Irkutsk region).
One of the most disruptive amendments to the Russian Constitution was made in 2014. The purpose of this amendment (as stated in the explanatory note) was to “ensure the uniformity of approaches in the administration of justice in relation to individuals and legal entities, eliminate the possibility of denial of access to judicial protection, and maintain uniformity of judicial practice”15. To do that, it was proposed to merge the Higher Arbitrazh Court and the Supreme Court of the Russian Federation. But this merger or unification never happened—the Higher Arbitrazh Court was abolished and the judicial matters falling within its competence were transferred to the jurisdiction of the Supreme Court. So, the whole thing was never about the merger—it was about acquisition. In some ways, this event suggests certain parallels with a maneuver that is usually referred to as a hostile takeover16.
This constitutional amendment came into effect on August 6, 2014, and this day became a point of no return for the Russian judicial reform. Elimination of the Higher Arbitrazh Court was a huge loss, which strongly affected the entire system of adjudication of economic cases. Many legal practitioners point out that the Higher Arbitrazh Court was the only Russian court which became free of the “Soviet judicial mentality”, operated as an independent institution, and eventually became a misfit in Putin’s power vertical. It also symbolized the end of judicial reform in Russia and the escalation of the already ongoing judicial counter reform.
The biggest transformation of the Russian Constitution took place in 2020. During almost 27 years after its adoption in 1993, the Russian Constitution has never seen such fundamental changes. On January 15, 2020, in his State of the Union address Russian President Vladimir Putin presented his proposals for comprehensive changes in the Russian Constitution. In so doing, Putin exercised his constitutional obligation to determine the guidelines for domestic and international policy established by Art. 80 (3) of the Constitution. By virtue of this constitutional provision and the legal positions of the Constitutional Court of Russia17, these guidelines are now compulsory for all bodies of state power. The President offered a comprehensive program of changes to be made to the Russian Constitution and emphasized the following important points:
“Russia is and will remain Russia only as a sovereign state”18.
“Social obligations of the state must be fulfilled no matter what. We need a new constitutional norm establishing that the minimum monthly wage cannot be lower than the subsistence minimum. Principles of adequate pension coverage shall be also entrenched in the Constitution”.
Individuals holding offices “that are crucially important for ensuring the safety and sovereignty of the state” cannot hold foreign citizenship or permanent residence status from another country19.
“A constitutional provision establishing that the same person cannot hold the office of the President of the Russian Federation for more than two terms is being debated. I do not think that it is a pivotal question; however, I agree with it”.
«It is important to enshrine the principles of a unified system of public authority in the Constitution, and to organize efficient cooperation between the state and municipal organs. Herewith, the powers and real possibilities of local self-government (the level of power that is closest to the people) must and shall be extended and strengthened” .
“[...] to entrust the State Duma with not just the coordination, but the approval process of candidates for the position of the Chairman of the Government of the RF, and also with approval process of all Deputy Chairpersons and federal ministers…This will increase the role and importance of the national Parliament, the role and importance of the State Duma…and will ensure more efficient and substantial cooperation between the legislative and the executive branch”20.
“The Fundamental Law shall establish and protect judicial independence, as well as the principle that judges shall be governed solely by the Constitution and federal laws”21.
Putin also emphasized the key tasks of further constitutional development:
to create a strong, reliable, invulnerable and stable system that will guarantee Russia’s independence and sovereignty;
to create a system that will ensure the rotation of those vested with power or occupying high-ranking positions in other areas22.
Wasting no time, on January 20th President Putin submitted the draft constitutional amendments to the State Duma. Over the course of several weeks, the initial draft underwent significant alterations, was approved by both houses of the Russian Parliament in early March, and was signed into law by President Putin on March 14, 2020. On the next day, the Constitutional Court of Russia examined the issue of constitutionality of the presidential amendments and found them to be in conformity with the Russian Constitution. On July 4, 2020, the constitutional amendments23 came into force after the electorate’s approval in the course of the “all-Russian voting”. Notably, several amendments strongly contradicted the President’s program of constitutional changes announced in his State of the Union speech in January of 2020. The most infamous amendment, which was suggested by Valentina Tereshkova on March 10, 2020, during the second reading of the draft law on amendments to the Constitution of the Russian Federation, “zeroed out” Putin’s presidential terms. This amendment openly contradicts Putin’s statement on the necessity of rotation of power, which was made in his 2020 State of the Union speech24.
Putin’s amendments are unprecedented due to a number of factors. First, the total number of amendments—206 in one set. Compare this to a mere 27 amendments to the U.S. Constitution in more than 200 years. Here we beat America once and for all: at least based on this metric, Russia can be the absolute champion. Second, the procedure of putting the amendments up to the “all-Russian voting” was invented specifically to adopt them—no one has ever heard about this procedure before, nor was it mentioned in any normative act prior to Presidential Decree No. 32 “On the organization of preparation for the conducting of the nationwide vote on the subject of introducing amendments to the Constitution of the Russian Federation” on February 14, 2020. The fact that the all-Russian voting procedure never existed prior to the amendments was shyly admitted by the Constitutional Court, which, however, noted that it has a special legal nature. In its opinion from March 16, 2020, the Court stated that “The constitutional lawmaker, relying on the principle of democracy, had the right to turn to the all-Russian voting procedure, which is not directly envisaged in the existing legislation, for the passing of the constitutional amendment, in order to legitimize his decision”.
Among the 206 amendments, it is difficult to find those that would significantly improve the lives of the Russian people, and the State Duma’s assurances that they will protect citizens’ rights sound utterly unconvincing. Some amendments are of an openly discriminatory nature and symbolize the victory of the “Russian historic and cultural traditions” over Western values. For example, the revised p. 1 (g-1) of Art. 72 envisages the “protection of the institution of marriage as the union of a man and a woman”. It goes without saying that this constitutional provision is oppressive and insulting for the members of the Russian LGBT community. The wording ” the Russian language as the language of the nation-forming people” may offend people who reside in the RF, but are not ethnically Russian. The latest attempts to rewrite history have been elevated to the constitutional level. Unflattering historic facts such as the occupation of the Baltic states and the forceful incorporation of Estonia, Latvia and Lithuania into the Soviet Union are vigorously denied by the current regime. Unsurprisingly, new p.3 of Art. 67.1 reads like a political statement: “The Russian Federation honors the memory of the defenders of the Fatherland and ensures the protection of historic truth. Belittling the significance of the achievement of the people in protecting the Fatherland shall not be allowed”.
Putin’s amendments strongly affected the Russian judiciary. The President was vested with the power to initiate the procedure of termination of powers of judges of various ranks by the Federation Council. This new power of the Russian President is highly questionable since it is in breach of the fundamental principles of the status of judges—judicial independence and irremovability of judges. The Russian president has a final say in almost all judicial appointments; now he is empowered to initiate the termination of powers of judges, so the latter will totally depend upon his discretion. Russian legal practitioners concur with the representatives of the academia in their criticism of this amendment; they consistently make a point that only the representatives of the judicial community can bring up the issue of termination of the powers of a judge.
Putin’s amendments downsized the number of Justices of the Constitutional Court and significantly reduced the possibilities to seek protection of constitutional rights and freedoms in the Constitutional Court. Now people may have to spend years exhausting national legal remedies before becoming eligible to refer the matter to the national body of constitutional review. The amended Art. 125 raises to the constitutional level the competence of the Constitutional Court to resolve matters concerning the possibility of enforcing judgments of the European Court on Human Rights. The same constitutional provision empowers the Constitutional Court to decide on the possibility to enforce judgments of foreign or international (interstate) courts and foreign or international arbitrations which impose obligations on Russia, if such judgments contradict the fundamentals of public legal order of the RF. This amendment was directed specifically against the Dutch Court of Appeal Judgment of February 18, 2020, in the case of Yukos shareholders v. Russia. This suggestion is confirmed by the minutes of President Putin’s meeting with members of the working group on drafting proposals for amendments to the Russian Constitution, which was held on February 26, 2020. The working group meeting minutes show that one of the amendment’s drafters, Senator Konstantin Kosachev, Chairman of the Foreign Affairs Committee of the Upper House of the Russian Parliament, stated:
“What do we mean by [this amendment]? Recently, we have seen a large number of such unlawful decisions made by foreign courts. We get to see them and hear about them. Let me quote just one most recent highly publicized example—the recent order of the Hague Court of Appeal mandating Russia to pay 50 billion dollars to the former shareholders of Yukos… From our point of view, we need comprehensive constitutional instruments to protect Russian national interests from such shameless political infringements”25.
President Putin stated in response: “I fully agree with what was said about the authority of the Constitutional Court to decide whether or not to enforce international court rulings in Russia. You are right—this is directly related to upholding our sovereignty and suppressing any attempts to interfere in our domestic affairs.”26
Compliance with the fundamentals of the public legal order of Russia established in the amended Art. 125 as a criterion of enforceability for the judgments of foreign or international (interstate) courts and foreign or international arbitrations is highly problematic for the following reasons: (1) the notion of “public legal order” does not belong to the area of Russian constitutional law; (2) its ambiguity constitutes grounds for arbitrary interpretation; (3) this vague criterion will facilitate the process of Russia avoiding its international obligations yet again.
The 2020 constitutional amendments did not just “zero out” Vladimir Putin’s presidential terms, but also extended his powers. As a result of this political theater, we got the prospect of a long life together with President Vladimir Putin, who now:
governs the executive branch;
appoints (following consultations with the Federation Council) a number of ministers to office, including security ministers (siloviki), the Minister of Justice, the Minister of Foreign Affairs, as well as prosecutors of various levels, including the General Prosecutor;
removes the aforementioned officials from office without consultation or coordination;
fires the Prime Minister without dissolving the government;
dissolves the State Duma not only in the event that a suggested candidate for the Prime Minister position has been rejected three times, but also if more than a third of the suggested cabinet members have been rejected (except for the ministers appointed personally by the president);
appoints members of the Federation Council—up to 30 members, including seven lifetime senators;
becomes a lifetime member of the Federation Council once his term in office is over or if he resigns early (though he has a right to refuse);
initiates the procedure to terminate powers of the chief justices of the Constitutional and Supreme Courts and their deputies, as well as the chairmen and judges of cassation and appeal courts.
Thus, the president now firmly holds all branches of the government in his hands. And the only constitutionally entrenched way to influence him is to initiate an impeachment procedure. But this procedure, even at the time of Boris Yeltsin’s “weak presidentialism”. has never been completed in the history of Russia.
Incidentally, the constitutional amendments also took care of post-Putin times—that is, what will happen when his presidential term actually expires. The president, naturally, has immunity. He cannot be brought to criminal or administrative responsibility, as well as be detained, arrested, or subjected to a search or interrogation. The inviolability of the ex-president extends to his residential and office premises, vehicles, means of communication, luggage, documents and correspondence. Only the Federation Council can strip him of his immunity, and only under the same procedure his removal from office can possibly be stipulated. It is based on accusations brought by the Duma, and confirmed by the Supreme Court, of criminal activity by the president, either acting or former, backed up by the Constitutional Court’s conclusion that the established procedure for bringing charges has been observed. Thus, the possibility of criminal prosecution of the former head of state is close to absolute zero. This circle is now complete.
Sadly, Putin’s amendments reflect the obvious re-Sovietization trend and ruin the best features of the initial version of the Russian Constitution, which signified a drastic shift from the Communist dictatorship to a democratic government and became an important step toward the establishment of a rule of law in Russia. The 1993 Constitution both provided spacious room for international legal standards in the domestic legal setting and clarified the status of international law in the Russian domestic legal system. It also represented a bold political commitment to the international community and its fundamental values expressed in the principles and norms of international law. The 2020 amendments symbolize the end of Russia’s commitment to the international community and its fundamental values. Instead, these amendments pave the way for the Russian Federation to avoid its international obligations. Moreover, the new constitutional provisions signal the partial return of the Soviet isolationist “doctrine of transformation”, which protected the state from the direct penetration of international law. Thus, in 2020, the year of its 27th anniversary, the original Russian Constitution literally joined the 27 club—it died when it was 27 years old, just like Jim Morrison, Janis Joplin, and Jimi Hendrix.
DOI 10.55167/d3ed71e07436