The disciplinary branch of the Russian Supreme Court has reprimanded Alexander Nesterenko, a judge at the Eighth Kemerovo Court of Appeals, for publishing his dissenting opinions on the court website.
In 2019–2021, Nesterenko published dissenting opinions in 15 different civil cases. Since the appellate court website doesn’t support separate publication of opinions in addition to the decision in each case, Nesterenko had his assistant insert them directly into the text of each decision posted on the website. Last November, a Supreme Court collegium deemed this inappropriate, on the grounds that Nesterenko’s dissenting opinions undermine the authority of the Russian judicial system.
Earlier, in January 2022, the Russian Legal Press website published an article about Nesterenko and his dissenting opinions. This prompted the head of the Eighth appellate court to contact the Russian Council of Justices. The council reviewed the complaint and decided that Nesterenko’s public dissent was undermining the authority of the court and his own reputation. This decision was followed by a formal warning from the Russian federal bar association (“VKSS”).
Nesterenko disputed the disciplinary action against him in the Supreme Court, arguing that he wanted to communicate his judicial opinions to people involved in each lawsuit but unable to attend the hearings. He also argued that Russian civil procedure does not expressly forbid the publication of dissenting opinions.
The Supreme Court rejected these arguments, saying that dissenting opinions in civil cases are not in any way binding, nor are they even presented in the trial hearing. Parties to the case are merely informed of their right to review any dissenting opinions.
When asked to clarify Nesterenko’s case, the retired Constitutional Court judge Tamara Morschakova told the journalists that, given the lack of permission to publish dissenting opinions in the Russian law, judicial officials cannot presume this right for themselves, and must instead assume that they cannot do what they have not been explicitly permitted. This rule of thumb applied to dissenting opinions since the Soviet era, Morschakova added. The only express exception from it has been a permission to publish the dissenting opinions of the Constitutional Court — but in 2020, even that exception was repealed.
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