Taking Public Interests Seriously? Security as a legitimate aim in constitutional adjudication in Russia

Abstract

Security is one of the widest and open-ended concepts. Each discipline focuses only on its particular aspects. Global constitutionalism recognizes security as a public aim that justifies interference with constitutional freedoms. At the same time security is a basis for broad discretion of governmental bodies. In constitutional adjudication, security is part of the proportionality analysis, which requires to test the legitimacy of public objectives. Most often, the security issues arise in “hard” cases concerning the measures to combat terrorism, illegal migration, and other risks of the modern era. The proportionality principle itself has been studied in great detail and is being considered as evidence for the emerging global constitutionalism. At first glance the requirement of legitimate aim is a simple exercise for the courts and an easy test to pass for governments especially for introducing security measures. Therefore, this sub-principle of proportionality didn’t receive proper attention in the doctrine. Security analysis as a legitimate aim could fill this gap and bring added value to the academic discussion. Although, how could the experience of the Russian Federation be useful in this context? Some doubts are cast upon it with regards to the explicit recognition of this country as a main threat of the Common Foreign and Security Policy in Europe. Russia has demonstrated during its transition period from a soviet system different models dealing with a balance between security and fundamental freedoms in constitutional adjudication. It evolved from taking a more liberal approach during the establishment of the Constitutional Court of the Russian Federation in the early 1990s to a more conservative model in its modern case-law. The main argument of the paper was put in the title by rephrasing Dworkin’s famous metaphor on rights as trumps. Constitutional adjudication as a guiding institution of the Russian legal system is characterized by overestimation of weight, which is attached to public interests. Moreover, when being viewed as analogous to playing cards security is not even seen as a trump, but rather as a joker which is able to justify any wide interference with most fundamental individual freedoms. In this sense, the case-law of Russia can be relevant for the difficult strategic goal-setting of Europe itself, which faces such powerful internal enemies as right-wing populism and the denial of the fundamental values of liberal democracy. Thus, the aim of this paper is to provide an analysis of security as a legitimate aim in constitutional adjudication in Russia. The structure of the paper is as follows. It starts in the second section with a short overview of the social context of security in Russia. Socialist tradition demonstrates that the overemphasizing of the importance of security and other public interests could lead to the serious violations of constitutional rights. The third section of the paper presents two methodological approaches to the balance between constitutional rights and security. The early case-law of the Constitutional Court of the Russian Federation reflects rare examples of trumping constitutional rights for security reasons. In this section the author also argues that the modern case-law of the Constitutional Court could be described as trumping public interest in general and security policies in particular over most fundamental individual freedoms. Finally, the forth section of the paper analyses different models of intensity of judicial review from minimum to maximum scrutiny. The core argument of this paper is that scrutiny of public aims should depend on several factors such as the need for ad hoc balancing in both an historical and social context; the status of the decisionmaker; the importance of the right concerned; the subject-matter of the dispute; the need for budget funding; fact-finding and burden of proof; decision-making in good faith.