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Вопрос вопросов: может ли судья быть независим? Размышления о книге: Морщакова Т.Г. Судья вне зависимости. М. : Фонд «Президентский центр Б.Н.Ельцина», 2025
Judges should be independent of politics, yet they are constantly ensnared by it. Politics haunts judges even where the full scope of constitutional guarantees for the separation of powers and an in dependent judiciary is in place, infiltrating the courtroom through variable interpretations of the val ues, principles, and norms of the constitution, the selection of arguments, and the assessment of facts in a particular case. It exerts a powerful, invisible influence through the ideological and moral beliefs of the judiciary, the organization of the judiciary, the cognitive and informational processes involved in formulating legal positions, and the determination of judges’ motivations when rendering specific decisions. This political component of judicial decisions is particularly heightened in times of constitutional crisis, when the old constitution loses its legitimacy and a new one is not adopted, the branches of government cannot reach a consensus on the fundamental principles, and the judicial community itself becomes divided in its interpretation of ways out of the crisis. In conditions of a le gal vacuum or a conflict of norms in so-called difficult cases (denoting the alternative nature of pos sible legal positions with opposing political choices), the determining factor in a court decision be comes not so much a legal choice as an ethical choice from the standpoint of a legal ideal — a judge’s inner moral conviction and their willingness to defend this conviction despite powerful pressure from society, the state, or certain elite groups in a constant struggle for power. This choice becomes even more dramatic in the case of an authoritarian transformation of power, demonstrating the ultimate conflict between dependence and independence — accepting pressure or refusing it, even to the point of resignation. It is precisely this ability of the court to uphold its legal position — to say no to the legislature and other branches of government — that determines the concept of judicial indepen dence and, ultimately, the fate of the rule of law and the protection of fundamental human rights — whether they are preserved, restricted, or completely suppressed by the authorities. This range of is sues is examined in T. G. Morshchakova’s book, leitmotif of which is the presumption of the exis tence of an independent judge — the definition of a set of social, legal, and organizational principles that determine the authentic content of legal proceedings and guarantee the legal nature of the state’s political decisions. This topic is explored based on the author’s extensive experience in for mulating the positions of the Constitutional Court of Russia in resolving the most pressing political cases during the early days of Russian constitutional justice. The focus is on the fine line between law and politics, the crossing of which threatens to rob the court of its true independence and turn it into a tool for legitimizing political decisions. The question remains: where does this line actually lie, and to what extent is it understood by modern judges?