You can have it, you can’t present it – Newspaper Kommersant No. 241 (7442) dated 12/27/2022

The highest court reminded the servants of Themis that it is possible to have your own opinion, but you should keep it to yourself. The Disciplinary Board of the Supreme Court confirmed that the publication of a dissenting opinion is a procedural violation and diminishes the authority of the judiciary. This practice has remained unchanged since Soviet times, the expert notes. Until recently, an exception to the general ban on the publication of dissenting opinions was provided for the Constitutional Court, but it lost such a privilege, without becoming an example for the judicial system as a whole.

The publication of a dissenting opinion of a judge violates procedural law and diminishes the authority of the judiciary. This is stated in the decision of the Disciplinary Board of the Supreme Court of the Russian Federation, which considered the complaint of the judge of the Eighth Cassation Court (located in Kemerovo) Alexander Nesterenko, who was punished for the repeated publication of dissenting opinions on the court website. Mr. Nesterenko contested the decision of the High Qualifications Board of Judges (HQJC), which in September brought him to disciplinary liability in the form of a remark for such a violation.

In total, it follows from the decision of the Supreme Court, in 2019-2021, Judge Nesterenko delivered a dissenting opinion on 15 civil cases, in which he was a speaker. In addition, “realizing the technical impossibility of publishing a dissenting opinion” (GAS “Pravosudie” does not provide for the publication of a dissenting opinion as a separate document), Alexander Nesterenko instructed the assistant judge to attach dissenting opinions to the text of the final judicial decisions adopted collectively and publish them on the court’s website as a single document . In January of this year, the anomaly was discovered by the Legal Information Agency, after which the chairman of the Eighth Cassation Court turned to the Council of Judges with a request to conduct an audit.

Mr. Nesterenko himself believed that there was nothing criminal in his actions: the law does not contain a direct ban on the publication of a dissenting opinion, and the lack of technical possibility for such publication does not change either the essence of the final judicial acts or the procedure for their adoption, the judge argued. According to him, a dissenting opinion is not a right, but a duty of the judge, and he had to bring its content to the attention of persons who were not present at the court session.

However, the VKKS, and later the disciplinary board of the Supreme Court, regarded the actions of Alexander Nesterenko as detracting from the authority of the judiciary and damaging the reputation of the judge. The procedural law does provide the judge with the opportunity to express his opinion on the merits of the dispute, different from the opinion of the Judicial Board, the Supreme Court confirmed. “At the same time,” his decision notes, “the law does not provide for publicizing the dissenting opinion of a judge either in a court session or through its subsequent publication. The right of the persons participating in the case to get acquainted with the dissenting opinion of the judge is not equivalent to its publication.”

The Board in its decision also recalled that the publication of a dissenting opinion does not provide for other procedural codes, be it the Code of Criminal Procedure, Arbitration Procedure or the Code of Administrative Procedure. And since July 2021, judges of the Constitutional Court have also lost this opportunity. The right of a judge to a dissenting opinion acts as a procedural guarantee of the principle of his independence, enshrined in the Constitution, but at the same time it is only a personal opinion, the court decision notes.

Indeed, the procedural codes do not provide for either the announcement of dissenting opinions of judges or their publication, and from this point of view, the HQCC and the Supreme Court follow the law, Tamara Morshchakova, a retired judge of the Constitutional Court, confirms. Although there is no direct ban on the publication of dissenting opinions of judges, it follows from the permissive principle in determining the powers of government representatives – they are not allowed what is not expressly allowed. With regard to dissenting opinions, the expert recalls, such a general rule has existed since Soviet times (it was not by chance that they were filed in closed envelopes), and only higher authorities had the right to familiarize themselves with them. Until recently, an exception to the general ban on the publication of dissenting opinions was provided for the Constitutional Court, the law on which such a possibility has been expressly provided since 1991. However, Ms. Morshchakova adds, since then the practice of publishing dissenting opinions by the Constitutional Court has not become an example for the judicial system as a whole, and the legislator has not even raised such a question in relation to other courts.

Anastasia Kornya