Russia Report: March 3, 2003

The unexpected election last week of Valerii Zorkin to the post of Constitutional Court chairman is one of the very few major surprises in Russian political life since President Vladimir Putin's rise to power three years ago. This year and next are national election years, and the Constitutional Court could be in a position to render decisions concerning these races. The Communist Party, for example, has mounted a legal challenge to the moratorium on holding national referendums a year before a national election. In addition, an unidentified legal specialist told "Moskovskii komsomolets" on 22 February that it is possible that a number of "important laws of the last few years will be declared partially unconstitutional," including the law on the formation of the Federation Council and the presidential decree that created the seven federal districts.

Zorkin's election was surprising not simply because most observers expected incumbent Chairman Marat Baglai to be re-elected to a third term. Zorkin himself is a controversial figure who served as the court's chairman almost 10 years ago. On 21 September 1993, Zorkin's court declared President Boris Yeltsin's presidential decree disbanding the Supreme Soviet a violation of the Russian Constitution. On 6 October 1993, days after Yeltsin ordered tanks to fire on the parliament building, Zorkin resigned as chairman, but he was allowed to remain as a justice on the court. The hostility between Zorkin and Yeltsin's circle was reportedly so intense that Yeltsin's bodyguards shot dead Zorkin's favorite cat, according to "Moskovskii komsomolets" on 22 February.

No one -- including Zorkin -- anticipated his re-election to his former post. Zorkin told "Kommersant-Daily" on 25 February that he hopes his re-election "is not perceived as the advent of a person who fought for this job." This happened by chance," he said. On 20 February, the day before the vote was held, the daily "Vremya-MN" speculated that if Baglai was not re-elected, then Deputy Chairman Vladimir Strekosov, Justice Secretary Yurii Danilov, Justice Nikolai Seleznev, and Justice Yurii Rudkin were well suited for the job. Zorkin was not even mentioned.

However, other Moscow-based media contend that Zorkin's election did not come as a complete surprise to everyone -- or at least not to the Kremlin. According to "Rossiiskaya gazeta" on 22 February -- citing only unidentified, unofficial sources -- members of the presidential administration were involved in discussions with justices about the election of the chairman since January. Presidential administration head Aleksandr Voloshin and his deputy, Vladislav Surkov, were reportedly "chatting regularly with the judges." Deputy presidential administration head Dmitrii Kozak also reportedly played an unspecified role. According to the daily, "Baglai would have suited the Kremlin more, but they are ready to cooperate with Zorkin."

"Moskovskii komsomolets," on the other hand, depicted Zorkin's election as just another manifestation of the struggle between the two clans controlling the Kremlin -- the Yeltsin-era "Family" and the St. Petersburg chekists. And in this battle, the paper argues, the chekists won. According to the daily, Zorkin actively lobbied for his new post by cultivating friendships with deputy presidential administration head Viktor Ivanov and other key members of the St. Petersburg clan. Meanwhile, Zorkin's fellow judges were reportedly tired of Surkov's influence. Members of the court were reportedly fond of joking that the only entities higher than the court are "the Russian Constitution and Surkov," the daily reported.

Of course, until some judge writes his or her memoirs, we won't know for certain. Suffice it to say that the court's next few decisions on cases with political consequences should be watched closely. (Julie A. Corwin)

"RFE/RL Russian Political Weekly" spoke with Professor Peter Maggs, an expert on Russian law who holds the Clifford M. & Bette A. Carney Chair in Law at the University of Illinois-Urbana-Champaign, about the changes on the court. JAC

RFE/RL: A contradictory picture of Zorkin emerges from the Russian press. On the one hand, some analysts see him as simply a good judge who enforced the law, while others see him as a judge who overstepped the line and became a political figure. At the same time, some of Zorkin's comments suggest that he sees himself as a judge who strayed into politics but who will be reluctant to do so again. Who is Zorkin?

MAGGS: Maybe he is all of the above. If you look first at the law on the Constitutional Court, there are two rather contradictory provisions that were in effect in 1993 when Zorkin got into his big conflict with Yeltsin. On the one hand, Article 14.3 says a judge of the Constitutional Court shall not engage in political actions or engage in political propaganda or agitation. And obviously Zorkin could fairly easily be said to have done that. On the other hand, Article 21.6 says that in cases of an urgent nature, in particular, those that could cause irreparable harm, the chairman shall send to the appropriate government bodies and officials demands for the suspension of enforcement of laws or decrees until they can be considered by the Constitutional Court. That suggests that he does have the power to say, "Hey, you are doing something unconstitutional."

If you want to try to make an argument in his favor, you can basically say that Yeltsin was trying to carry out a revolution. And when you carry out a revolution, by definition you violate the existing constitution. The revolution might have been a very good idea. I, for one, think that there was too much left of the old Communist system, and it had to be thoroughly destroyed. But even if the revolution is a good idea, it puts the judge of a constitutional court in a difficult position [if] he is specifically given the power to ask that acts be suspended until they can be considered. I think that would be the best argument in favor of Zorkin: You are somewhat between a rock and a hard place if your job is carrying out the constitution and a revolution is going on that will destroy the constitution, which is, of course, what happened. And the winners write the history -- Yeltsin was the winner.

It should be noted that [Zorkin] went beyond that rule and first tried to play the role of mediator between the parliamentary faction [led by Supreme Soviet Speaker Ruslan Khasbulatov] and Yeltsin. Then he appeared to be taking sides with the parliamentary faction. It's not clear whether that was because that's where his politics lay or because under the Soviet Constitution, which was still largely in effect, parliament was supreme. That is why it used to be called the Supreme Soviet.

RFE/RL: There was also that accusation by fellow Justice [Nikolai] Vitryuk that Zorkin falsified the results of the vote on the Yeltsin decree...

MAGGS: Yes, that was part of the accusation that he didn't allow dissenting voters the right to express themselves and that he tended to speak for the court. He was accused of acting hastily, not following court rules, not convening sessions properly, and just moving too fast on these things.

The new version of the law on the Constitutional Court enacted in 1994 was carefully drafted with Zorkin's actions in mind to try to prevent any future court from taking that kind of action. It says that the chairman cannot speak for the court unless authorized [to do so] by the majority of court, and the provision which said that the chairman can act in emergency to try to stop decrees was removed.

RFE/RL: Some press reports have concluded that because Zorkin was elected, the justices want the court to become more independent again. They charge that Baglai was too close to the Kremlin and was always carrying out its bidding. That is the popular view of Baglai anyway. Is that fair?

MAGGS: That might be the popular view, but most of the functions of the head judge have to do with administration. Since there is a secret ballot, it's always possible that there were a number of judges who weren't happy with what Baglai was doing as court administrator. Period. You also have got to remember that there are a lot of holdovers from the 1991 court and, if they all voted for Zorkin and if he voted for himself, then it wouldn't take much more to elect him. He only needed 10 votes with 19 judges on the court. I think there are a lot of possible explanations. But the Russian Constitutional Court appears to be a lot "leakier" than the U.S. Supreme Court, so we will probably find out at some point why people voted as they did.

RFE/RL: But is there justification for the view that Baglai was too close to Kremlin?

MAGGS: I don't know. While the Kremlin hasn't suffered any big defeats at the court, it's not the situation where the court has been split and voted 10 to 9 on a lot of issues. In the vast majority of cases they have been unanimous or nearly unanimous. And that means that whoever those 10 people were who voted for Zorkin, they have been continually voting in a way that has not been terribly upsetting to them.

RFE/RL: To what do you attribute the lack of dissents? Could that be a success of Baglai's leadership?

MAGGS: That is a very complex question that has to do more with real leadership than with the formal position Baglai [had].

RFE/RL: How would compare the relationship between the court and the Kremlin under Putin and under Yeltsin?

MAGGS: Putin has had two great advantages over Yeltsin. One, he has been able to get what he wants out of parliament. He didn't have to rule by decrees of dubious legality. Two, he's a lawyer with what seems like a pretty decent knowledge of the legal system. I think he listens to advisers who say: "Don't do something a certain way because it isn't constitutional; do it this way, which is constitutional." Putin has done very little that is unconstitutional, while Yeltsin did a lot that was clearly unconstitutional.

RFE/RL: What about Putin's decree establishing the seven federal districts?

MAGGS: If the districts really had any real power, then that would be of very dubious constitutionality. If they are just a way to distribute jobs for his friends to keep an eye out for what is going on in the provinces and if he doesn't give them any real powers, then [the envoys] can't be acting unconstitutionally. If they are given serious powers to interfere with the 89 federation subjects, it would become a constitutional issue.

The Constitutional Court comprises 19 justices who are nominated by the president and approved by the Federation Council. As of 1 January 2005 -- when amendments to the law on the Constitutional Court that were adopted in December 2001 come into effect -- the term of the Constitutional Court justices will be 15 years and the mandatory retirement age will be 70. According to that law, the independence of Constitutional Court justices is ensured by their irremovability, their statutory immunity, and their equal voting rights. The chairman, deputy chairman, and justice secretary are elected individually by secret ballot for three-year terms during a plenary session of the court.

The current court has been characterized as being split into two "generations." The old guard is represented by the seven justices who were elected in 1991 by the Congress of People's Deputies. The new generation is composed of the nine justices appointed between October 1994 and February 2000. It might be more accurate, however, to describe the court as having at least three camps, since there are now three judges who were appointed by Putin and who have close ties to the St. Petersburg clan. Sergei Kazantsev, a former law professor at St. Petersburg State University, was appointed in March 2002. Two more justices -- former Tyumen Oblast Arbitration Court Chairman Mikhail Kleandrov and Urals State Law Academy Professor Larisa Krasavchikova -- were appointed this month. Earlier, both of them worked under deputy presidential administration head Kozak, who has overseen the Kremlin's reforms of the judicial system, according to "Rossiiskaya gazeta" on 22 February.

The terms of the justices are determined according to two different laws. Judges appointed before the new version of the law on the constitutional court came into force on 21 July 1994 serve until they reach the age of 65. Judges appointed after that date serve either 15 years or until they reach the age of 70. Baglai, 71, managed to retain his position because of a special bill amending the law removing any mandatory age limit. However, a new amendment was later introduced, and Baglai will finally have to retire when it comes into effect on 1 January 2005 (the court has a website but parts of it have not been updated in some time: http://ks.rfnet.ru).

In the court's 12-year existence there have been three chairmen in addition to Zorkin. Nikolai Vitruk served from October 1993 until February 1995. Vladimir Tumanov served from February 1995 until February 1997. Marat Baglai, the most recent chairman, served two terms from February 1997 to February 2003. Vitruk and Tumanov have retired from the court, and Baglai's term, as mentioned, will expire in January 2005. (Julie A. Corwin)

Chairman: Valerii Zorkin, 60 (term expires: February 2008)

Deputy Chairman: Vladimir Strekozov, 62 (term expires: December 2009)

Justice Secretary: Yurii Danilov, 52, (term expires: November 2009)

Nikolai Bondar, 52 (term expires: February 2015)

Mikhail Kleandrov, 56 (term expires: 2016)

Gadis Gadzhiev, 49 (term expires: August 2018)

Lyudmila Zharkova, 47 (term expires: June 2012)

Gennadii Zhilin, 56 (term expires: May 2014)

Sergei Kazantsev, 48 (term expires: March 2017)

Marat Baglai, 71 (term expires: January 2005)

Anatolii Kononov, 55 (term expires: June 2012)

Viktor Luchin, 63 (term expires: March 2004)

Yurii Rudkin, 51 (term expires: November 2016)

Nikolai Seleznev, 57 (term expires: May 2010)

Anatolii Sliva, 63 (term expires: February 2010)

Larisa Krasavchikova, 47 (term expires: February 2018)

Olga Khokhyakova, 54 (term expires: October 2009)

Boris Ebzeev, 53 (term expires: February 2015)

Vladimir Yaroslavtsev, 50 (term expires: October 2009)

(Sources: http://ks.rfnet.ru, "Federalnyi konstitutsionyi zakon: Konstitutsionnom sude Rossiiskoi Federatsii (s izmeneniyami na 15 dekabrya 2001 goda)" and "na osnovanii ukaza Presidenta ot 24 dekabrya 1993 goda No. 2288.")

State Duma deputies voted on 21 February to approve in its third and final reading a package of six bills reforming the country's electricity sector, RosBalt reported (see "RFE/RL Russian Political Weekly," 21 February 2003). According to the agency, the vote on one of the key bills -- on electrical energy -- was 256 in favor with 160 against and two abstentions. That was just 30 votes more than necessary for passage. If adopted in its current form, the bill's key provisions will take effect no earlier than 1 July 2005, according to ITAR-TASS. Under the bill, the unified national electric-power network will be managed by a publicly traded company, in which the federal government will have a charter stake of at least 52 percent during a transition period, a stake that will ultimately be increased to no less than 75 percent. JAC

According to "Kommersant-Daily" on 22 February, usually a bill's third reading occurs without any amendments or much discussion. However, the Communists continued their efforts to stall the electricity-sector reforms during the 21 February Duma session. Fatherland-All Russia faction leader Vyacheslav Volodin demanded that the government explain how it plans to prevent an avalanche of higher rates in the regions before the Duma passes the bills. Deputy Economic Development and Trade Minister Andrei Sharonov told reporters that he expects the bills will be discussed more "quietly" in the Federation Council and predicted that the likelihood of the bills being approved there is "extremely high." JAC

Also on 21 February, deputies passed in its first reading presidential legislation on the organization of local self-government and the distribution of power among various levels of government, Russian news agencies reported. The vote on the first bill was 269 in favor, 139 against, and nine abstentions, ITAR-TASS reported. The legislation sets out a procedure for transferring government functions to local government and prohibits unfunded mandates from higher levels of government, according to RosBalt. The Communists and the Union of Rightist Forces (SPS) opposed the legislation, and Yabloko announced that it will support the package in its current form only in its first reading, according to polit.ru. In his annual address to Tatarstan's parliament on 20 February, republican President Mintimer Shaimiev said if the bills are adopted in their present form they will hand over powers to the "[federal] center, which is already overloaded with them, and the rest will be transferred to the municipal level," RFE/RL's Kazan bureau reported. JAC

Deputy Vadim Bonchar (SPS), who opposes the local self-government legislation, likened the bills to the redistribution of power and property that was undertaken during the "Time of Troubles" in the early 17th century, "The Moscow Times" reported on 21 February. He noted that the costly transition phase has not been budgeted in the legislation and could lead to property disputes, unpaid bills, and a great deal of buck passing. According to the daily, the Standard & Poor's rating agency has criticized the reform as a whole and has said it will make municipalities less attractive to investors "due to the high likelihood of conflicts over property rights." In an interview with RFE/RL's Moscow bureau on 22 February, Deputy Vladimir Lysenko (Russian Regions) said he is categorically opposed to the bills. Lysenko noted that the bill stipulates that "if a region's debts exceed more than one-third of its annual budget, then the elected governor is automatically dismissed and an administrator is named by the federal center." He predicts that while there are currently only a few such regions, in the next 18 months there will be more, which makes this point "very dangerous." JAC

LEGISLATION

Name of law____________Date approved____________No. of reading

On natural monopolies_____21 February_______________3rd

On state regulations of______21 February_______________3rd
tariffs for electricity and heat

Civil Code_______________21 February_______________3rd
(electricity)

On electrical energy_________21 February______________3rd

On enactment of the law______21 February______________3rd
on electrical energy

On energy conservation______21 February______________3rd

On the general principles_____21 February______________1st
for organizing local self rule

On the general principles_____21 February______________1st
for organizing legislative and
executive organs of the Federation subjects

IN: Gazprom CEO Aleksei Miller has appointed Sergei Ushakov as the company's deputy chairman for administration, RosBalt reported on 19 February, citing Gazprom's press service. Ushakov will be in charge of administrative and personnel issues. Ushakov is a former deputy director of the Federal Protection Service and previously worked in the Federal Security Service (FSB) in St. Petersburg and Leningrad Oblast. He graduated from Leningrad State University in 1974. The next day, Valerii Golubev, Leningrad Oblast legislature's representative to the Federation Council, announced that he is resigning his post and will work in the private sector. According to "Kommersant-Daily" on 21 February, Golubev plans to assume a leadership position with a Gazprom subsidiary. Golubev is a former KGB officer and, like President Putin, worked in the administration of former St. Petersburg Mayor Anatolii Sobchak.

OUT: Oleg Mitvol, chairman of the board of directors of the newspaper "Novye izvestiya," announced on 20 February that he has dismissed Igor Golembiovskii as the daily's general director, Interfax and other Russian news agencies reported. It remains unclear whether Golembiovskii will continue as the paper's editor in chief, and the paper has not appeared on newsstands since 20 February.

APPOINTED: President Putin on 25 February appointed Colonel General Gennadii Troshev, formerly the commander of the North Caucasus Military District, as the presidential adviser with responsibility for Cossack affairs, ITAR-TASS and RIA-Novosti reported, citing the presidential press service. Putin signed a decree the same day abolishing the presidential administration's Directorate for Cossack Affairs and dismissing its head, General Petr Deinekin.

25 February-2 March: State Duma Chairman Gennadii Seleznev officially visited Morocco and Tunisia

26 February-1 March: International political forum held in Perm

Early March: President Putin visiting Bulgaria

2-4 March: Italian Deputy Prime Minister Gianfranco Fini will visit Moscow and St. Petersburg

5 March: 50th anniversary of the death of Stalin

6 March: Date by which the final version of the constitution of the Russia-Belarus Union will be prepared, according to Duma Speaker Gennadii Seleznev on 3 February

7 March: Tatarstan's Supreme Court will hold a hearing on the constitutionality of certain provisions of the republican constitution, RFE/RL's Kazan bureau reported on 26 February

8 March: International Women's Day observed

12 March: Norilsk Nickel management has scheduled a meeting with workers to avert a possible strike, although local union leaders say they will not participate

12 March: Federation Council will consider package of legislation reforming country's power grid

22 March: Congress of Democratic Forces will be held in Moscow

23 March: Mayoral elections will be held in Novorossiisk

23 March: A referendum will be held in Chechnya on the republic's draft constitution and draft laws on the election of the president and parliament

25 March: The Leningrad Oblast legislature will select a new representative to the Federation Council

29 March: Unified Russia party will hold a congress

1 April: Date by which the State Duma would like the government to submit legislation amending the budget and tax codes in line with proposed legislation reforming local government, ITAR-TASS reported on 21 February

7-10 April: Russian-Mongolian Forum on Economic Cooperation to be held in Ulan Bator

15 April: Court hearing in the trial of National Bolshevik Party leader Eduard Limonov will reconvene

20 April: Mayoral elections will take place in Norilsk

May: St. Petersburg will celebrate the 300th anniversary of its founding

1 May: Deadline by which the government will finish preparing a package of legislation establishing a mortgage system, ITAR-TASS reported on 26 February

11 May: Parliamentary elections will be held in North Ossetia

31 May: Russia-EU summit will take place in St. Petersburg

17-21 June: Seventh International Economic Forum will be held in St. Petersburg

27 June: Gazprom will hold annual shareholders meeting

29 October: 85th anniversary of the founding of the Komsomol