Anita Soboleva, Ph.D.
Associate Professor, Department of Public Policy
National Research University – Higher School of Economics (HSE)
Russia
Use and Misuse of Language in Jurisprudence of Russian Courts: Do Linguistic
Arguments Matter?
(First Draft. Subject to Changes)
Abstract: In my paper I will analyze decisions of the Russian Constitutional Court and courts of
general jurisdiction, in which they interpret ordinary words for the purposes of adjusting the
language of law to the facts and situations. I will argue, that even literal interpretation may be
used as a means of manipulation or legitimizing the decisions made on political or social
considerations rather than on purely legal grounds. For the purposes of my research I selected
the cases from the jurisprudence of Russian courts, in which linguistic arguments are used. I call
‘linguistic arguments’ the arguments in support of interpretation following the words of the law
(literal, strict, formal or sensu stricto interpretation). By linguistic meaning of the word I
understand its ordinary meaning and/or the meaning prescribed by law. Though literal
interpretation is too often incompatible with the concept of justice and therefore in addressing a
legal controversy one should also take into account other criteria, there are also examples of
court decisions, in which literal interpretation would have been more appropriate in terms of
justice and human rights protection, but was ignored by different reasons.
First of all, I would like to mention that by “linguistic argument” I understand the argument in
support of interpretation following the words of the law, that is literal, strict, or formal
construction, and by linguistic meaning of the word - its ordinary meaning and the meaning
prescribed by the legal definition. I also call “linguistic argument” an argument based on the
meaning of a word derived from a linguistic context, namely, from the text of the analyzed legal
act as a whole (the so-called "contextually harmonizing argument").
I do not use the term “linguistic context” in a wider sense, which would include also other legal
acts, precedents, customs, values, moral attitudes, historical and pragmatic considerations, etc. I
will consider only those types of interpretation, when the meaning of the word still remains
closely bound to “the letter of law” and, although allowing for certain interpreter’s freedom, still
restricts this freedom to a considerable extent.
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In my opinion, the logic of the legal analysis requires to start the search for the meaning from the
linguistic context, then involve the broader context and, finally, to balance all the arguments
received.1 For me, literal construction is a starting point of interpretation.
But the jurisprudence of the Russian Constitutional Court shows that this court does not share my
position. It employs arguments from literal interpretation quite rare, even in cases when it would
seem quite reasonable.
Let us compare, for example, two texts: “each detained person… is entitled to an assistance of an
attorney (defender2) from the moment, respectively, of the detention …” (Article 48 part 2 of the
Constitution of the Russian Federation) and “only an attorney producing an order of legal
consultancy office and a representative of a trade union or other non-profit organization can act as
a defenderl …” (part 4 Article 47 of the Code of Criminal Procedure). The text of the Code of
Criminal Procedure doesn’t allow private attorneys generally licensed to practice law but not
admitted to a litigation collegium (that is often translated into English as Bar Association, but – as
distinct from ABA - has different status and structure) – to act as defenders (or “defense
counsels”). The issue addressed by the court was whether this provision of the Code of Criminal
Procedure contradicts the text of the Constitution.
In the text of the Constitution the word "defender" is cited in parantheses following the word
"attorney", which, according to the syntactic rules of the Russian language, would point to the
synonymy of these words in the context mentioned above. However, this argument was not
provided or considered by the court. The court neither discussed the ordinary meaning of the words
nor undertook any linguistic examination of the way these two words are perceived by ordinary
people: as identical or having some differences in meaning. Usually the word "attorney" is used to
mean a lawyer by profession involved in providing advice to clients and litigating in courts for a
fee. In most cases such a lawyer is a member of the Litigation Collegium – at least, during the
Soviet times it was an essential condition for the provision of service to private individuals. In a
lawyer's perception an "attorney" is, undoubtedly, a member of Litigation Collegium. As to the
1
For the purposes of the legal research, considering the whole of the reality as a context would not be justified,
since this sort of broad interpretation of the "context" does not allow to identify starting points of legal arguments. It
doesn’t give the researcher an opportunity to see how a word changes its meaning depending on specific factors,
what these factors are, and, most importantly, what weight of each of them has. Whereas for a linguist all the
contexts are equal, for a lawyer they have strict hierarchy and different obligatory power.
2
The Russian word "защитник", although translated as "defense counsel" in the legal context, is broader in
meaning and, when not considered in the specific context, literally means simply "defender", which shall be kept in
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word "defender", it is derived from the word to "defend"; in the common language it may refer
both to a lawyer and a member of some other profession (cf. "defender of the Motherland",
"human rights defender", the "defense player" in soccer). In the context of the Constitution the
word "defender" ("защитник") is perceived as referring to a lawyer, but, most probably, does not
imply the lawyer's membership in the Litigation Collegium. While from the viewpoint of the
criminal law a "defender" is normally a member of the Collegium, which makes these words nearly
synonymous in this context, nonetheless, the Code of Criminal Procedure provides that a court
may grant permission to close relatives and legal representatives of the accused (who are not
lawyers!) to act in the capacity of defenders (or defense counsel).
The Court didn’t adduce or analyze any linguistic arguments, and based its decision on correlation
of the “right to attorney (defense counsel)” with the “right to professional legal assistance”. The
Court's reasoning was as follows.
The relatives and legal representatives are mentioned as defense counsel only in connection with
the trial stage, therefore, at the pre-trail stage, during investigation, the defense can only be
provided by attorneys and representatives of trade unions or other non-profit association. Conduct
of the defense by any person at the election of the suspect or the accused at these stages "may have
as a result that the defense is undertaken by a person not possessing necessary professional
competence, which would be incompatible with the tasks of the public justice and the obligation of
the state to guarantee professional legal assistance to every citizen." Professional requirements to
be met by the litigation attorneys are set by the Statute on the litigation attorneys (Закон об
адвокатуре). The Constitution does not provide any criteria of the appropriate level of
qualifications required from persons providing legal assistance to citizens. Such criteria may be set
only by the legislative branch, and only the legislative branch can envision the feasibility of
permitting, in addition to litigation attorneys, other lawyers licensed generally to provide legal
services, to act as defenders at the request of the accused during preliminary investigations.
The court paid its attention to the fact, that the Code of Criminal Procedure allowed representatives
of a trade union or a non-for-profit organization to conduct defense at the stage of pretrial
investigation, and that the legislator did not require from such representatives to have legal
education, professional knowledge and experience. But this fact did not affect the position of the
court. Instead, the court says, that this provision casts doubt on “the possibility of securing the right
to professional legal assistance for the defendant in situations when the defender at the pretrial
mind when reading the related linguistic analysis. It also requires that in some instances in this text it is translated as
"defender" – Translator's note.
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investigation stage is not a litigation attorney …" But no review of the constitutionality of this
provision was undertaken, because this issue was not raised by the applicants in their complaint.
The Court likewise did not address why the criteria established for the quality of the defense at the
pretrial investigation stage should be different from those established for the defense at the judicial
stage, nor why a person who is not a member of the Litigation Collegium should be considered as
qualified for litigation for the accused in court.
In its decision the Court held that allowing only the members of the Collegium to provide defense
at the pretrial investigation stage does not violate the constitutional right of the accused to be
represented by the attorney (or defender) of his or her choice.
Much more interesting is the dissenting opinion of Justice Ametistov, who argued as follows: “In
this case we need to answer the question of whether the Constitution… uses the terms "attorney"
and "defender" as synonyms or assumes that one has a broader content than the other. Assuming
they are used as synonyms, that is, words identical in meaning, one is lead to a conclusion that the
term "defender" (“защитник”), placed in parentheses, has as its sole purpose to clarify the
meaning of the term "litigation attorney." This conclusion would be rather doubtful, given that the
term "attorney" has been very common in the Russian vocabulary for a long time, and it is quite
unlikely that a present-day reader of the Constitution requires its explanation. Analysis of the
meanings of the words "attorney" and "defender" in the dictionaries of the contemporary Russian
literary language shows that the word "attorney" in common usage relates only to the activity of
professional lawyers. The word "defender" has a broader meaning, as it relates to the activity of
any person involved in the defense or representation of the interests of others in court and legal
proceedings. One might deduce from this that, by using this word in Article 48 section 2, the
Constitution grants citizens the right to use legal assistance not only to litigation attorneys, that is,
members of the Litigation Collegium, but also to any other defenders”. However, as we know, the
justicies were not satisfied with this argument.
It's also quite surprising how the Constitutional Court of the Russian Federation interprets Article
14 of the International Covenant on Civil and Political Rights, which stipulates that everyone
charged with criminal offense shall be entitled “to communicate with counsel of his own choose”
and “to defend himself in person or through legal assistance of his own choosing”. The right of a
citizen for independent choice of an attorney (defense counsel) was also affirmed by the
Constitutional Court of the Russian Federation itself. However, in a later ruling we find the
following statement: “However, in its content the right for independent choice of an attorney
(defense counsel) does not mean the right to choose as a defender any person of the suspect's or the
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accused’s choice and does not imply a possibility of involvement of any person as a defender in
criminal proceedings”.
The lobbying of the interests of the Litigation Collegium, although it wasn't explicitly evident in
the Court's arguments, had a determinative effect on its approach to the interpretation of terms in
the case in question. The fact that the Court's interpretation of the terms "defender" and "attorney"
was not based on linguistic considerations indicates that, far from being a "clarification of
meaning" of the words, the practical purpose of interpretation in law is the search for arguments to
justify the decision already taken.
The above mentioned case raises some further issues. How could one decide whether the words
"attorney" and “defender” are used in the text of the Constitution in their ordinary meaning or as
legal terms? Whereas these two words are not synonymous for lawyers, in the ordinary language
they can be used as full synonyms: see for instance, the definition provided in the Dictionary of
Foreign Words: “An attorney (адвокат) (from the Latin advocatus) is a lawyer providing
professional legal assistance by means of advice, defense of an accused in court etc.; a defender”.
Unfortunately, there are no studies in legal terminology that would allow distinguishing between
the word in its ordinary meaning and the word as a legal term in a legal text. In the process of legal
practice, practically every word appearing in a text of a statute is given its specific interpretation by
a court of higher jurisdiction, which becomes mandatory for lower courts. Does an ordinary word
become a term in this process? Are the words "attorney" and "defender" just ordinary words or
special terms of art, and if they are such terms, then in which areas of law? Are such words from
the text of the Constitution as "family", "disabled", "residence", "free (medical service, education)"
terms of art? Is the law an integrated system of terms or does each branch of law have its own
terminology? Does the word "defender" have different meanings in the criminal law, civil law,
constitutional law and the human rights law? Which sources should be consulted in case there is a
need for a definition of such words, while the judicial practice has not yet provided such
definitions?
The difficulty of appealing to the terminological meaning of a word is also related to the fact that
the legal terms should be distinguished from concepts of law, which is easy in theory but rather
difficult in practice. For example, expressions like "law-based state", "social state", "separation of
powers" used in the Russian Constitution, may be both legal terms and concepts of law.
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As far as the constitutions are concerned, the matters are further complicated by the fact that in
most countries texts of constitutions, unlike those of other legislative acts, do not provide
definitions.
The difficulty of literal interpretation may be exemplified by a case taken from the practice of the
Constitutional Court of Russia, where an ambiguity arose in the interpretation of a seemingly
clear phrase, formulated in plain words: “total number of deputies in the State Duma”. Based on
the "letter of the law", the Court proved unable to answer the question of whether it means the
number of actually elected deputies (that is, with the deduction of the deceased and revoked
ones) or the number which has to be elected in accordance with the Constitution (that is, 450
deputies)”.3 From the linguistic perspective it is quite difficult to explain the fact that the
Resolution of the Congress of the People's Deputies of Russia in 1991 “On the interpretation of
the notion “total number of the people's deputies of RSFSR” used in the Constitution of RSFSR”
stated that the 'total number of the people's deputies" should be interpreted as the number of
actually elected people's deputies of RSFSR, whereas the decision of the Constitutional Court of
the Russian Federation dated April 12, 1995 stated that the same phrase should mean the number
of the deputies established by the Constitution for the State Duma in Article 95, part 3 (that is, as
the Court called it, the “constitutional number”, or 450 deputies).
There are also examples of decisions in which the Court essentially avoids the requirement to give
a linguistic interpretation. During the prolonged illness of President Yeltsin the State Duma sent to
the Constitutional Court a request to interpret the words of the Constitution "persistent disability
for health reasons" contained in a statutory provision governing the issue of the early termination
of the President's powers (part 2 of Article 92). The Court brought lots of irrelevant arguments
(citing, in particular the articles relating to the procedures governing the President's swearing into
office, his dismissal from office in case of charges of high treason or other grave crime,
termination of powers due to the expiration of the term in office and even the Article 78 part 4,
stating that "According to the Constitution of the Russian Federation, the President of the Russian
Federation and the Government of the Russian Federation ensure exercise of the federal state
power throughout the territory of the Russian Federation"). Having expressed its concerns that a
violation of the procedures governing the early termination of powers of the President may result
in a unconstitutional appropriation of the presidential authority by some body or person, and
stating in this respect that "the procedure of early termination of the President's powers in case of a
persistent inability for health reasons to exercise his powers can not be simplified", the Court never
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answered the question of how this persistent inability should be defined and what kind of
procedure for the President's dismissal from office should be used in case such inability occurs.
For the Constitutional Court, a linguistic argument is but one among several possible arguments
to be used in resolving a legal dispute. This approach is based, among other things, on the
provision of the Law "On the Constitutional Court of the Russian Federation", under which the
Constitutional Court, in making its decisions, doesn’t only assess the literal meaning of the
constitutional provisions which require interpretation, but also the meaning attributed to them by
the actual law enforcement practice, as well as with due regard to their place in the whole system
of constitutional provisions of the Russian Federation.
Unlike the Constitutional Court, ordinary courts always prefer literal interpretation of a statutory
provision. Most complaints of the citizens submitted to the Constitutional Court result from this
particular tendency of the courts to interpret the legal provision in a literal manner without relating
them to the provisions of the Constitution.
Below is one characteristic example. The law established compensations and benefits for persons
who were “evacuated (relocated) or voluntarily moved from contaminated communities”.
Following a literal interpretation of the law, the courts refused to grant benefits to a citizen who
was evacuated (moved) to another, newly built, street, since he “didn’t move from the
contaminated community”. The Cheliabinsk Oblast court held that the law doesn’t apply to persons
who are moved within the same community.
The Constitutional Court of the Russian Federation disagreed in this case with the literal
interpretation, since the literal construction “doesn’t correspond to the purpose and meaning of the
Law appealed against, as stated in its preamble”, which is to protect the rights and legal interests of
citizens who found themselves within the area of influence of adverse factors, as well as puts
citizens in unequal position, depriving some of them of their right to favorable environment and
the protection of their health. In par. 4 of its Ruling the Constitutional Court noted that, following
the literal meaning of par.3 of Article 1 of the Law, the law enforcement agencies, guided
exclusively by a formal criterion, deprive one part of the population of an opportunity to protect
their rights and legal interests. At the same time, the Court didn’t consider the provision itself as
unconstitutional, pointing only to the unconstitutional nature of its application practice.
3
Ruling of the Constitutional Court of the Russian Federation dated April 12, 1995, VKS, 1995, No.No. 2-3.
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The Court applied similar approach when faced with the need to address the issue of
constitutionality of certain provisions of the Law “On the citizenship of the Russian Federation”.
The courts were refusing to recognize the applicants' status as Russian citizens on the grounds that
they left Russia for other republics of the former USSR. According to the literal meaning of the old
citizenship law, such persons were “considered to have been the citizens of the Russian
Federation”, which, according to the ordinary courts, does not provide a ground for considering
them as "being the citizens." The Court held that the phrase “considered to have been the citizens
of the Russian Federation” can't mean the same as “having lost” the citizenship, but shall mean that
“such persons are considered to have been Russian citizens by birth not only in the past, before
they had lost citizenship of the former USSR, but also after that they continued and continue to
keep the Russian citizenship until it is terminated by an expression of their own will … The
attribution to the appealed provision of the Law of a meaning which actually upholds a termination
of citizenship of the Russian Federation by birth without free declaration of a citizen's will in the
law enforcement practice contravenes Article 6 (part 3) of the Constitution of the Russian
Federation which stipulates that a citizen of the Russian Federation can not be deprived of his or
her citizenship”. The most noteworthy point in the Court's reasoning is that the Court, disapproving
of the law enforcement practice based on the literal interpretation of the past participle "have been"
as relating exclusively to the past, tries to prove the potential connection of this participle to the
present tense as well (with the meaning of “who have been and continue to be”), justifying the
need for such interpretation by extralinguistic factors. In this case the Court again avoids adopting
a decision that would declare this provision unconstitutional, but simply "reinterprets" it in such a
way that it actually creates a new provision while keeping its old language.
It is a common knowledge that the literal interpretation is too often incompatible with the
concept of justice which lies in the foundation of any law system, and that therefore in
addressing a legal controversy one should also take into account other criteria. The particular
feature of the approach used by the Russian Court, however, is that it is not bold enough as to
repeal the whole provision as unconstitutional, but simply requires that it is given a new
meaning. Unsurprisingly, in practice the law enforcement agencies are not too keen on
considering the Rulings of the Constitutional Court, still less the so-called "dismissal
determinations", which contain a legal position (when an applicant’s claim is dismissed on
procedural grounds, but in the text of its negative ruling the Court gives a clear statement of its
position on the case, which should be reconsidered by the ordinary courts accordingly).
Personally, I see two reasons behind this sort of approach. First, the horrendous law enforcement
practice inherited from the Soviet period, which invariably puts the interests of the state before
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those of the individual, the interests of the powers that be before those of the civil society, so that
the Constitution is violated by the established practice of the interpretation and application of a
statutory provision rather than its language. Secondly, from the viewpoint of the prospects of the
development of the legal system it would be problematic to declare unconstitutional a provision
of law which can't simply be repealed but has to be replaced by another one. Given the tardiness
of the lawmaker and the obscurity of the prospects of legislative amendment of the provision,
taking such decision would result in prolonged legal vacuum. However, these reflections do not
keep me from considering the current approach implemented by the Constitutional Court
questionable.
The Court's approach in the case discussed below appears puzzling at the very least. Article 336,
part 2, of the old Code of Criminal Procedure reads as follows: "The Supreme Court … notifies
of the date of appellate hearing of a case the parties of the proceedings requesting such hearing in
their writs of appeal or their objections to notices of opposition or complaints." For all the courts
of other levels, according to the first part of the same article, notification of all the parties having
submitted writs of appeal of the date and place of the hearing was considered obligatory. An
applicant, a person convicted in a case, who didn’t attend the session of the appellate court since
neither he nor his defence counsel petitioned for that and, therefore, were not notified of the date
and place of the hearing – appealed against this approach as an unconstitutional one. The Court,
based on its previous rulings relating to examination of other articles of the Code of Criminal
Procedure proceeding from the legal premise that the right to defence counsel in court implies an
opportunity for the parties to the proceedings to familiarize themselves with the positions of
those making submissions in the proceedings as well as additional materials, give explanations
and be notified of the time and place of the hearing – refused to declare this provision
unconstitutional, considering such ruling superfluous. In its dismissal determinations the Court
held that the provisions of this article can't provide a ground for non-notification of the parties to
the proceedings of the date of hearing of their case in an appellate court of any level. "Any other
interpretation of the above provisions in the law enforcement practice is to be ruled out", the
court stated. It remains inexplicable, however, why the court didn’t simlpy repeal this provision.
On many occasions the court, although using the linguistic argument, comes to quite paradoxical
conclusions totally unrelated to this argument.
In a ruling on the case concerning the interpretation of part 4 of Article 66 dated July 14, 1997,
the Constitutional Court was required to interpret the word " inclusion", as used in the phrase
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"the relations of autonomous districts included in a krai or oblast, may be regulated by a federal
law or an agreement", in order to establish the nature of the relations between them as well as the
legal effect of such "inclusion."
Tiumen Oblast, which includes Khanty-Mansi and Yamal- Nenetsky autonomous districts,
independent subjects of the federation, contends that the fact that an autonomous district is part
of the oblast means that the territory and the population of an autonomous district are included
into the territory and the population of the oblast. Consequently, the population of an
autonomous district should participate in the election of the legislative powers of the oblast as
well as the head of its administration. Inclusion would also mean partial extension to the
autonomous district of the jurisdiction of the governmental bodies of the oblast.
Meanwhile, the legislative bodies of the autonomous districts believed that their being part of the
oblast doesn’t change their status as equal subjects of the Russian Federation and can't justify an
extension of the jurisdiction of the bodies of power of the oblast to an autonomous district.
In its interpretation of the word "inclusion" the Constitutional Court, rather than referring to the
letter of the law, considered the history of federalism in Russia: "The use of the term "included"
means that the Constitution of the Russian Federation recognizes a situation which existed before
it came into effect, namely, that the autonomous districts which didn’t enact modification of their
status still form part of the respective krai or oblast." On the other hand, the Court noted that, in
parallel to the principles of continuity, the 1993 Constitution of the Russian Federation envisages
a number of substantial changes in the regulation of federal relations, including the equality of
all the subjects, which is reflected in a whole range of its articles. "However, the principle of
equality of subjects of the Russian Federation," continues the Court, "does not preclude inclusion
of an autonomous district in a krai or oblast." Equality of subjects, according to the Court's
reasoning, relates to their relationship with the federal bodies of power, equal implementation in
all the subjects of the provisions relating to the protection of rights and freedoms, equal
implementation of all the provisions concerning the separation of powers, supremacy of the
Constitution etc.
"Inclusion" of one subject of the Russian Federation into another "is an actual inclusion only in
case where its territory and population are included into the territory and population of another
subject." But the "inclusion … doesn’t mean that an autonomous district loses its territory by
way of its absorption by a krai or oblast." " Inclusion of an autonomous district into a krai or
oblast also means that the population of the district is recognized a component part of such krai
or oblast." Thus, an "inclusion" mean an "inclusion without absorption." Since it is rather
difficult to come to any specific conclusion proceeding from this kind of linguistic interpretation,
in this particular case, being in the position of the Constitutional Court, I would rather abandon
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the linguistic argument altogether and try to build my argumentation on a different basis.
However, the fact remains: based on its analysis cited above, the Court decided that the inclusion
of an autonomous district into an oblast means that the territory and the population of a krai or an
oblast include as their component parts the territory and the population of the autonomous
district; the fact of the inclusion of the autonomous region in the oblast provides grounds for the
extension onto the region of the authority of the oblast's bodies of power (within the limits
prescribed by the federal law and an agreement; the oblast is entitled to constitute its
representative and executive bodies of power by elections conducted by the entire population of
the oblast, including the residents of the autonomous region, which creates prerequisites for
redistribution of authority between the bodies of power of the oblast and those of the
autonomous district. The Court added that the absence of an agreement between the bodies of
power of the two subjects can't be considered as an obstacle for the extension of the jurisdiction
of the bodies of power of the oblast onto an autonomous district.
On the whole, the Constitutional Court of the Russian Federation doesn’t resort too often to the
linguistic interpretation per se, as defined in its narrow sense (as a literal interpretation). It tries
not to bind itself with the letter of the law, which, in principle, can be due to its commitment to
the search of "constitutionally-legal meaning" – an approach the Court has been implementing
ever more often, having made it its predominant practice. One positive side of this approach is
that the Constitutional Court is not bound by outdated normative doctrines of the supremacy of
the "letter of law" and brings into the everyday Russian court practice the interpretations based
on the "spirit of the law", the spirit of constitutionalism. Still, this approach involves a certain
risk: the "constitutionally-legal meaning" (like the "revolutionary legal sense" applied erstwhile,
in the Soviet times) may justify adoption of just any decision possible, since where it is applied
as a primary and basic (rather than an auxiliary and additional) criterion, the legal provision loses
any relation to its verbal image, which means that there is no criterion left to judge about the
objectivity of interpretation. The Constitutional Court becomes the sole bearer of some kind of
sacred knowledge about the sense and meaning of the constitutional provisions, and one could
only wish that in considering the citizens' complaints it is guided by the ideas of protection of
human rights and liming the powers of the state rather than otherwise.
The fact that these fears are not groundless may be evidenced by the decision on the case
concerning the interpretation of the provisions of part 4, Article 111 of the Constitution,
according to which "after a triple rejection of the candidates nominated for the position of the
Chairman of the Government of the Russian Federation", the President of the Russian Federation
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shall appoint the Chairman himself, dissolve the State Duma and order new elections." An
inquiry for an interpretation of this provision arose after President Boris Yeltsin nominated the
same candidate for the position of the Premier, prompting the deputies of the State Duma to send
an inquiry to the Constitutional Court as to whether the President was entitled to nominate once
more the candidate rejected by the State Duma and what would be the legal consequences of
triple rejection by the State Duma of the same candidate for the said position.
The Constitutional Court wrote in its ruling that, by the literal meaning of the provision, the
word combination "triple rejection of the submitted candidates" may mean both triple
nomination of the same person and a nomination of a new candidate every time. The Court held
that the language of the article in itself did not rule out any of these eventualities.
Next, using as the context the provisions of other articles of the Constitution, namely, the
provision that the President appoints the head of the government with the consent of the State
Duma (Article 83 par. "a"), that the President dissolves the State Duma in cases and in manner
prescribed by the Constitution (Article 84 par. "b") and that consenting to the President's
nomination of the head of the government (Article 103 par. "a") is a prerogative of the State
Duma, the Court concluded that the selection of a candidate for the position of the Premier is the
President's prerogative and that the Constitution allows the President to choose the specific
manner of exercising this right himself, "namely, to propose the same candidate twice or thrice
or to nominate a new candidate each time." Another interpretation, in the Court's opinion, would
jeopardize the stability of the constitutional system and the maintenance of the civil peace and
concord (no less that that!). In this context the Court makes a further specific note that, according
to the meaning of the provision under interpretation, one necessary consequence of the triple
rejection by the State Duma of the proposed candidates (or of the same candidate three times in a
row) is the appointment of the Chairman of the Government by the President, the dissolution of
the State Duma and the appointment of new election. Thus, by its interpretation the Court
practically negated the powers of the State Duma relating to the appointment of the head of
government, allowing the President to manipulate the Duma: to dissolve it, it would now be
sufficient to propose three times in a row an assuredly unacceptable, no-go candidate for the
position of the Premier, a trick that could be employed by the President ad infinitum.
In his dissenting opinion Justice V. Luchin noted that such approach would mean an approval of
unilateral acts of the President. "The end to the "intractability" of the State Duma," - writes
Justice V. Luchin, "is put by its dissolution, and the President can impose his will without
fearing any unfavorable consequences for himself. What sort of checks and balances mechanism
could be there in this case? The multiple-version choices for the President should be matched by
the multiple-version decision-making choices open for the State Duma."
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Use of the provision concerned with "the meaning created by the prevalent law enforcement
practice" resulted in one particular feature of the rulings of the Constitutional Court of the
Russian Federation: in the language of its rulings and determinations, the Constitutional Court,
with very rare exceptions, avoids to cite either the contested provision of a statutory act
(restricting itself to citing the number of the article and the name of the law), or the text of the
constitutional provision that the contested provision of the act is tested for compliance with.
Thus, the Constitutional Court compares two meanings rather than two texts. In this procedure
one link in the logical chain is missing, namely, the one relating to the literal interpretation,
which in the rulings of the courts of other countries usually serves as a starting point in the
search and justification of the meaning of a legal provision.
The use of the literal interpretation by the Constitutional Court or, conversely, its unwillingness
to use it even as an argument, let alone a justification for its decisions, points to the fact that this
Court does not attempt to look for the meaning of a legal provision in its verbal expression. The
Court's argumentation ends up isolated from the text, and the Court, depending on the
circumstances, is guided in its decision-making by other considerations: pragmatic, conceptual,
political etc.
Courts of general jurisdiction, on the contrary, seek to follow the letter of the law, since such
rulings are more difficult to appeal against in the higher courts, including the Supreme Court.
The literal interpretation is also the governing principle for other law enforcement agencies: tax
authorities, social security agencies establishing pensions and benefits, other administrative
bodies. Attorneys of the litigants and citizens in their complaints and applications also often
employ the letter of the law, however, the courts rarely uphold their versions of literal
interpretation, especially in cases where they appeal against acts and decisions of executive
power bodies.
On the whole, the linguistic argument, rather than seeking for actual meaning, has to do with
attributing to a word or a phrase a meaning the Court wants it to have. Not surprisingly, the
Court only uses it in cases where it is compatible with the opinion the Court already has on the
particular case.