human rights in russian regions

Transcription

HUMAN RIGHTS
IN RUSSIAN REGIONS
Moscow
2003
The given publication was prepared within the Project
Human Rights Monitoring Network in the Russian Federation
implemented by the Moscow Helsinki Group
in partnership with
the International Helsinki Federation for Human Rights,
the Netherlands Helsinki Committee,
the Polish Helsinki Foundation for Human Rights
and human rights organizations from 89 regions
of the Russian Federation
Financial assistance for the Project
Human Rights Monitoring Network in the Russian Federation
is provided
by the European Commission
For the given publication, the Moscow Helsinki Group also used materials
and findings from its projects supported by the UK Foreign Office Human
Rights Projects Fund and the USAID
Chief Monitoring Coordinators: T. Lokshina, S. Lukashevskii
Chief Editor: T. Lokshina
Rendered into English by:
MBS Intellect Services Inc. Translation and Interpretation Agency
Editors: I. Sergeeva, J. DeVeny, S. Paul
Layout and Design: N. Kostenko
The views expressed herein are those of MHG and can therefore in no way be
taken to reflect the official opinion of the European Commission
The work by I. Makarevich has been used for the cover design
Copyright © 2003 by Moscow Helsinki Group
All rights reserved
TABLE OF CONTENTS
Introduction
T. Lokshina, S. Lukashevskii
7
Main Tendencies that Influenced the Human Rights Situation
in Russia in 2002
T. Lokshina, S. Lukashevskii..................................................................................................................9
I. Alternative NGO Report on Observance
of ICCPR by the Russian Federation
Introduction
Moscow Helsinki Group ............................................................................................................................ 21
Summary
Moscow Helsinki Group ............................................................................................................................ 22
Articles
Article 2
Memorial Human Rights Center,
Independent Council of Legal Expertise,
Center for Assistance to International Protection.........................................................................26
Article 3
Moscow Helsinki Group .....................................................................................................................................34
Article 4
Memorial Human Rights Center..................................................................................................................36
Article 6
Article 7
Nizhnii Novgorod Committee against Torture.................................................................................49
Article 8
Article 9
Article 10
Nizhnii Novgorod Committee against Torture.................................................................................68
Article 12
Article 13
Article 14
Article 17
Interregional Group “Human Rights Network”.............................................................................92
Article 18
Information Center SOVA,
Article 19
Glasnost Defense Foundation ........................................................................................................................98
Article 20
Information Center SOVA ............................................................................................................................105
Article 21
Movement for Human Rights.....................................................................................................................109
Article 22
Center for the Development of Democracy and Human Rights,
Center of Social Labor Rights....................................................................................................................111
Article 23
Moscow Helsinki Group ..................................................................................................................................119
Article 24
Article 25
Article 26
Memorial Human Rights Center ..............................................................................................................129
Recommendations ....................................................................................................................................... 136
II. Situation of Most Vulnerable Groups and Minorities
Discrimination against Women
Introduction
T. Lokshina, S. Lukashevskii ............................................................................................................ 151
Recommendations of the Moscow Helsinki Group
and Regional Women’s Nongovernmental Organizations
Based on the Monitoring Findings................................................................................................ 155
Discrimination against Women
S. Lukashevskii, S. Kovaleva............................................................................................................. 159
Discrimination and Legislation .................................................................................................................159
Discrimination against Women in Elections ..................................................................................161
The Right to Participate in Government and Public Service........................................166
4
The Right to Equal Access to Education .........................................................................................168
The Right to Equal Opportunity in Access to Employment............................................171
The Right to Equal Opportunity in Acess to Promotion....................................................180
The Right to Equal Pay..................................................................................................................................183
The Right to Social Security ......................................................................................................................191
The Rights of and Special Benefits to Pregnant Women ..................................................197
The Right to Free Obstetric Care ..........................................................................................................202
Domestic Violence................................................................................................................................................208
Sexual Violence (Extra-Familial) ............................................................................................................213
Road to Equality and Discrimination
On the Basis of Sex
L. Zavadskaya................................................................................................................................................ 216
Anti-Discrimination Aspect of International Law
N. Kravchuk..................................................................................................................................................... 226
The Plight of Women in Chechnya
O. Trousevich.................................................................................................................................................. 231
List of Monitoring Participants ............................................................................................................................238
Thematic Essays
The Status of Children
N. Kravchuk..................................................................................................................................................... 241
The Status of National Minorities
M. Manotskova............................................................................................................................................... 252
Ban on Instigation of War, Discrimination
and Violence
G. Kozhevnikova........................................................................................................................................... 262
The Status of Sexual Minorities
A. Sutyagin....................................................................................................................................................... 273
Annex
List of Regional Organizations-Members
of the Human Rights Monitoring Network: ..................................................................................283
INTRODUCTION
In following its tradition of many years, the Moscow Helsinki Group is proud to
present to the attention of the general public, authorities, and the expert community its fifth annual compilation entitled “Human Rights in Russian Regions.” The
reader will immediately notice that this publication significantly differs from corresponding reports published previously. Our previous compilations under the same
title were all-Russia reports covering the entire spectrum of human rights and
based on regional monitoring findings. This time we decided to radically change the
structure of the compilation. One of the main reasons is that in the summer of 2003
the UN Committee on Human Rights was to consider the Fifth Periodic Report of
the Russian Federation on its implementation of the International Covenant on
Civil and Political Rights (ICCPR).
ICCPR was ratified in 1973 by the Soviet Union, and was inherited by the Russian
Federation as the legal successor of the USSR. Of all the international obligations
assumed by Russia in the sphere of human rights, ICCPR is the cornerstone document. It includes a list of fundamental rights and freedoms, such as the freedom
from torture and cruel and degrading treatment, the freedom of speech, the freedom of conscience, the right to private life, etc.
The UN Committee on Human Rights monitors the implementation of the obligations assumed by the Covenant member states. Once every five years the Committee collects reports from the Covenant member states on their observance of the
Covenant provisions within the last period. Reports are considered at special sessions, at which the Committee makes recommendations to member states. Many
member states delay the submission of their periodic reports for a long time. For
example, the report of the Russian Federation in this case covered almost two report periods, and the Committee was looking forward to receiving it. As soon as the
report was finally received the Committee scheduled its review for its next session,
for July 15—16, 2003 to be precise.
Russian NGOs were also looking forward to the review of the Fifth Periodic Report
of the Russian Federation. The Committee on Human Rights, just like other UN
treaty bodies, conducts a direct dialogue with the member states, and the role
played by nongovernmental organizations is to provide UN experts, on a timely
basis, with an alternative view on the issue in order to enable them to form an objective opinion on how member states implement their obligations with respect to
this international agreement. This is done by submitting alternative reports to the
treaty bodies.
The Alternative Report on the International Covenant on Civil and Political Rights
was prepared by a coalition of NGOs that consisted of: Moscow Helsinki Group,
Memorial Human Rights Center, Center for Assistance to International Protection,
Nizhnii Novgorod Committee against Torture, Information Center SOVA, Center
for the Development of Democracy and Human Rights, the Glasnost Defense
Foundation, the Independent Council of Legal Expertise, Interregional Group “Human Rights Network,” the Movement for Human Rights, and the Center of Social
Labour Rights.
7
Given that the Moscow Helsinki Group and the human rights monitoring network
of regional organizations that it coordinates have been systematically reporting on
the human rights situation in Russia since 1998, the Moscow Helsinki Group not
only contributed several articles to the Alternative Report, but it also coordinated
the entire effort in general, and was responsible for the final editing and compilation of the final document. The Alternative Report includes materials that were
produced by regional human rights organizations — members of the MHG network, and others — in 1998—2002.
In early June 2003 the Alternative Report was forwarded to the Committee experts. On July 11 representatives of some of the human rights NGOs that contributed to the writing of this report were to arrive in Geneva to meet a number of
experts, hold a briefing for the Committee, etc. However, several days before the
hearings were to begin, the Russian Government asked the Committee to put off
the consideration of its periodic report, having justified this request by the fact
that it had not succeded in getting ready to the presentation of its own report. The
Committee reacted to this radical decision by our Government, which violates diplomatic etiquette, with sharp criticism.1 This resulted in an unprecedented situation:
despite that the review of the report of the Russian Federation was postponed until
autumn, the Committee experts deemed it appropriate to hear out Russian human
rights activists and their Alternative Report.2
During the briefing Russian human rights activists raised such issues as the human
rights situation in the Republic of Chechnya, non-implementation of the Committee’s decisions on individual complaints by Russia, violations of the right to life,
torture, discrimination, persecution of nongovernmental organizations, and the inadequacy of the court system from the standpoint of human rights protection, etc.
The experts asked a number of questions that demonstrated their concern with the
raised issues. All the experts highly praised the Alternative Report of the Russian
human rights activists, and emphasized the quality and objectivity of the information contained therein, as well as the relevance of the examples.
Working on the report, the NGO coalition analyzed an enormous amount of material on violations of human rights, which took several years to collect. Understanding the importance of this job we initially decided that in our compilation an alternative report would replace the traditional all-Russia annual report on the human
rights situation. The unprecedented events that unfolded around the alternative
report, and the high esteem in which it was held by the experts confirmed that we
right to make that decision.
Nevertheless, the compilation starts out with an overview of the primary trends
that affected the development of the human rights situation in 2002. The overview
is followed by the Alternative Report on the observation of the International Covenant on Civil and Political Rights by the Russian Federation. The last section of the
compilation is dedicated to the status of vulnerable population groups and minorities. The most significant material provided in this section is a report on the situation with discrimination of women in Russia that was prepared by the Moscow Helsinki Group together with regional women’s organizations in 20 subjects of the
Russian Federation. It is followed by a series of articles on the status of children
and national, religious, and sexual minorities.
1
First, the Committee decided that in the future if a Covenant member state does not submit
a timely request for permission to postpone the consideration of its report (i. e., if such a request is received less than two months before the appointed date) the Committee may ignore
this request and consider the report even in the absence of the governmental delegation. Second, the Committee emphasized that the Russian report will be considered in October regardless of circumstances, and any additional postponement was out of the question.
2
The Committee Chairman, A. Amor, was specific about noticing their presence in the auditorium, and emphasized the important role that NGOs play in the overall operation of the UN
system of human rights protection. He also stressed that the Committee had to protect the
interests of NGOs, in particular when NGOs, whose resources are very limited, fall victim to
instantaneous decisions [whims?!] of member states.
8
MAIN TENDENCIES THAT INFLUENCED THE HUMAN
RIGHTS SITUATION IN RUSSIA IN 2002
Chechnya in 2002
Russian Authorities justify blatant mass violations of human rights in the
Chechen Republic by their struggle against terrorism, and they stress that
they actually fight international terrorism. But as far back as 2001, and we
noted that in our previous report, the situation in the region was actually
mothballed and has remained unchanged. Chechnya witnesses disappearances of civilian people, violence, and looting which have become commonplace. It should be noted that gross human rights violations are committed
not only by representatives of the federal forces, in particular during socalled mop-up operations (zachistki), but also by the paramilitary formations they oppose.
Suffice it to recall the never ending mop-up operations in Chechen villages — four during only September-May, 2002, according to the “Memorial” Human Rights Center, (Mesker-Yurt (May-June); Chechen-Aul
(June); Tevzeny (August); Tsotsin-Yurt (September). Three operations resulted in a loss of life and in disappearances of civilian population, and in
all the cases numerous occurrences of cruel and degrading behavior of the
enforcement structures and looting took place.
Speaking about mop-up operations it is essential to underscore that Order
#80 issued on March 27, 2002 by Commander-in-Chief of the Joint Command Lieutenant-General V. Moltensky which stipulates strict operation
procedures, is generally ignored. This can be proven by relevant data collected by “the Memorial” Human Rights Center. Despite the fact that the
number of initiated criminal cases related to crimes against civilians considerably increased, so far not a single official who was in charge of the
mop-up operations, which resulted in mass and gross violations of rights of
civilians, has been held responsible, and investigation into most cases has
been suspended. Such a situation supports the climate of impunity, and
promotes the uncontrollability of enforcement structures.
The only adequate solution to the situation could be the termination of
mop-up operations. Yet, despite repeated promises on the part of the authorities, nothing of the kind has happened.
On the other hand, the civilian population dies as a result of subversive
activities against federal forces. For instance, on September 16, in Grozny,
an explosive device, apparently planted to destroy a truck with Russian
soldiers, went off several minutes earlier when a passenger bus was pass-
9
ing by. The explosion killed eight people, including two children, and injured 24.
Despite the tragedy of the Chechnya population suffering attacks from
both sides, and the nearly absolute absence of any progress in the way of a
peaceful conflict settlement, the authorities tried to create the impression
in society that the problem is multi-facetted, that there has been progress
in resolving the issue, that federal forces are coping with the situation
gradually, and that the course taken by the authorities is the only correct
one. This task predetermined the information policies of the federal authorities: maximal filtration of information coming from Chechnya, stress
on building peaceful life there and the restoration of social structure, and
information and propaganda support for federal forces operations.
The attention of the world community towards human rights violations in
Chechnya dwindled considerably after September 11. In the spring of 2002,
the UN Commission on Human Rights failed to adopt a Russia/Chechnya
resolution (in contrast to 2000 and 2001), and thus, the problem of the
Chechen conflict left the agenda of this major international human rights
forum. The USA and some European Union states started to close their
eyes to the Russian policy in Chechnya, which was pictured as part of the
general struggle against international terrorism.
In Russia, on the other hand, according to the All-Russian Center of Public
Opinion Studies (VTsIOM), the percentage of Russian citizens who are in
favor of peaceful talks with Chechnya went up from 51% to 57% during
January-September of 2002 alone. The population which supported combat
operations actively in 2000 (at that time 70% supported the continuation of
combat operations), in 2002, despite an aggressive propaganda campaign,
apparently favored the termination of the war in Chechnya. But the terrorist attack in Moscow in October, 2002 reversed the trend. According to a
poll conducted in late October, only 44% supported peaceful talks, as opposed to the 57% that had manifested their support for negotiations earlier
during the year. 49% were of the opinion that federal forces “are not tough
enough” in Chechnya.1
Terrorism
In fact, Russian authorities used the international terrorism issue to
smooth over their own position concerning the Chechnya conflict, the separatism problem, and the need to look for a separate settlement for Chechnya.
But here Russian policy fell into the trap it had set itself. Terrorist attacks
(particularly, on May 9 in Makhachkala (Dagestan) and especially in Moscow on October 23—26) clearly showed the calm and self-confidence
demonstrated by the authorities are quite illusory.
In this context, it must be noted that the Chechen military formations deliberately resort to gross violations of human rights (of the civilian population!) in their confrontation with federal authorities. Events in Makhachkala and Moscow differ in principle from the subversive operations in
Chechnya, because those terrorist attacks were targeted against civilians,
rather than against federal forces.
1
VTcIOM. Special issue. October 29, 2002.
10
The police operations conducted by federal forces to do away with the
Chechen resistance are accompanied with mass and flagrant violations of
human rights, and at the same time are incapable of guaranteeing security
for the Russian population in the face of terrorist attacks. Two reports
about “the destruction of Movsar Barayev” did not prevent him from successfully taking hostages in Moscow in October 2002.
Authorities Response
On October 23, 2002, several dozen terrorists seized the building of the socalled Theater Center on Dubrovka in Moscow during the jubilee performance of a popular “North-East” musical. Over 800 spectators and company
members were taken hostage. The crisis lasted for three nights and two
days. The terrorists stated that the building had been mined, and that the
explosion would kill at least everybody inside the building. The key demand of the terrorists was to stop the war in Chechnya, and have Russian
troops withdrawn from the Chechen Republic. Some public and political
figures tried to negotiate with the terrorists, and their attempts resulted in
the release of 98 refugees — basically women, children, and foreigners. On
the morning of October 26, special forces of the Federal Security Service
(FSB) stormed the building using special chemicals (gas). According to the
official information, 129 hostages died — only five of them killed by terrorists — and nobody was “missing in action.”2 All the terrorists, 41 persons, were killed during the assault. Two hundred commandos were involved in the assault from the anti-terrorist groups of FSB, no one was
seriously injured.
In spite of the massive loss of life among hostages, the authorities’ representatives praised the operation, referring to the losses as inevitable, and
discarding any doubt as to the efficiency of the special forces and other
operation services.
Minister of Internal Affairs, B. Gryslov, called the operation “concerted
and effective.”
Right after the operation, Deputy Minister of Internal Affairs, V. Vasilyev,
stated that, “There was information that a lot of people died as a result of
the use of some special means during the operation. This is not true.” To
support the statement, V. Vasilyev said that no one out of the 104 taken to
War Veterans hospital #1, was diagnosed as “poisoned.”
FSB Director, N. Patrushev, also spoke about the “concerted, well- coordinated work of all the structures.”
Moscow Mayor, Yu. Luzhkov, stated that the operation to release the hostages “was brilliant,” and A. Kadyrov, the Chechnya administration head,
maintained that “no other operation in the world could compare to this one
in terms of its professionalism and effectiveness.”
With these statements as a background, the mass media also circulated
information that makes one doubt that the operation was well-coordinated
and impeccable. And the words about special means having nothing to do
with the hostages’ deaths look unacceptable indeed.
2
There was information alternative to official: a list of 70 missing persons was made. And the
authorities displayed no initiative to find anything out in the situation, confining to replies
that according to official data no one was missing.
11
As early as October 27, Chief Physician of Moscow, A. Selysovsky, confirmed
that nearly all the hostages who died were poisoned “by a special gas.” He
also noted that prior to the assault medics had not been informed of the nature of the special means to be used during the operations.3 The gas itself
was not poisonous, but its side effects could cause “cardiac, respiratory, and
perfusion insufficiency,” which became the direct cause of death.
It is interesting that prior to the operation, on October 24, former head of
the Third Department of KGB, Vice Admiral A. Zhardetsky, stated in his
interview with the INTERFAX new agency that in the case that gas were
used, children and people suffering from chronic diseases of the respiratory tract and cardiovascular system would be practically doomed. If a
former KGB member had such information, operations headquarters personnel were bound to have it, and the hostages’ condition could not have
been a surprise to them. In this situation, the numerous errors in the
evacuation and in the rendering of first aid could not be explained. Having
analyzed several interviews with commandos, EMERCOM people, and doctors, we can state the following:
•
Personnel of the special forces were not briefed on the first aid techniques for people affected by the “special gases” (some people died because their bodies were not in the correct position while being taken
out of the building, and they suffocated).
Rescuers were not allowed to take part in the evacuation of hostages
immediately after the operation, which slowed down the process and
prevented it from being conducted as professionally as it could have
been.
Rescuers, in their turn, had not been warned about the use of the gas,
and they did not have adequate first aid means.
•
•
The same applies to ambulance doctors who were on duty outside the
theater building during the operation, namely in that they did not have
enough antidotes initially. For instance, I. Nazarova, Chief Physician of the
All-Russia Center of Medical Response to Catastrophes Hospital commented, “We did not know what kind of means had been used during the
operation. It was only on the site that we realized that gas had been employed.”4 One of the medics who participated in the rescue said, “We had
expected mine explosion injuries. As far as I know there had been no instructions for the hospitals to have stocks of some specific medicine.”5
Even part of the assault force did not get essential information and equipment. Fast Response Special Detachment of the Ministry of Internal Affairs (MVD SOBR) fighters were poisoned by the gas (though not so badly
as the hostages) when they entered the hall where the hostages were kept.
Some medics maintain that the massive loss of life occurred because of the
lack of medical transportation vehicles, and due to the transfer of hostages
in ordinary buses (which precludes any treatment on the move, besides
which there were no assigned medics in those buses). Others say that there
were enough ambulances but “traffic was hampered — an excessive concentration of various vehicles were blocking each other’s way.”
3
4
5
News.Ru (October 27, 2002).
News.Ru (October 28, 2002).
E.Vrantseva, “Were Sorted Out by Alive – Not Alive Principle,” Gazeta.Ru (October 29, 2002).
12
There were some mistakes in the organization of grouping victims according to their state of health. Indirectly it is proven by the fact that some
hostages who were alive were transported together with dead bodies. Besides which, hostages not wearing their overcoats were put on the ground
to determine their state of health at freezing temperature, which in some
cases resulted in pneumonia.
But even in this context, there is neither criticism nor any willingness at
the official level to find out the reasons for such errors and the lack of coordination in the rescue operation. Moreover, the authorities do not consider it necessary to start an open investigation with public involvement.
On the other hand, the State Duma voted against the Union of the Right
Forces (SPS) to conduct a parliamentary investigation.
SPS, having obtained the President’s consent, performed their own investigation. Since this investigation was informal, SPS did not have the opportunity to get testimony from all the officials they wanted. Nevertheless,
the conclusions drawn by the commission on the rescue operation, on the
whole, reflect the situation described above. It should be noted, though,
that the commission praised the conduct of special forces, and placed the
blame for the deaths on specific ministries and departments which were
responsible for “social and medical assistance to people.”6
We agree with the statement that the civilian structures must be prepared
for any consequences of terrorist attacks, but in this case it is obvious that
one of the main causes for the loss of life was the lack of coordination between military and civilian authorities, and it was the military structures
that failed to provide adequate information to civilians, which was indispensable for proper organization of aid to the victims.
In any case, despite the pessimistic conclusions of the commission, the authorities are very unlikely to agree to public reconsideration of the operation results. At least, due to the fact that the commission’s conclusions
were not a surprise for the federal authorities. When B. Nemtsov summarized the investigation results for President Putin at the November 14
meeting, he heard the following response, “Whatever you are saying is
very close to what I know.”7
In fact, everything mentioned above makes us think that while organizing
the move only one component of the operation was given due attention —
the destruction of the terrorists and the prevention of an explosion. That is
why, despite statements in favor of the hostages’ release being a top priority task, this mission was actually treated as a secondary one.8 Without attempting to offer recommendations for an effective counter-terrorist
struggle we are compelled to state that in the case of the Moscow terrorist
attack of October 23—26, 2002, we witnessed a gross violation of the right
to life.
6
“We Cannot Allow Such Mistakes to be Made in the Future,” http://www.sps.ru (October
28, 2002).
7
Sergei Parkhomenko, Alexander Ryklin, “Amendments to the Terrorist Attack,” Ezhenedelny Zhurnal (#46).
8
An indirect confirmation of such a conclusion are the event which followed the assault,
when in the interests of the investigation information on the fate of hostages became classified for several days, which caused panic among relatives, brought about public tensions and
partially contributed to the appearance of the victims list whose reliability was not proven.
13
* * *
Realizing that many mistakes made during the operation became known
thanks to mass media coverage, which was non-stop during the operation,
using not only official information sources, and later collecting reports of
eye-witnesses, negotiators etc., the authorities wanted to guarantee positive coverage of similar events should they happen in the future. Right
after the attack, pro-governmental forces in the State Duma came out
with an initiative to amend the legislation on fighting terrorism with provisions aimed at restricting freedom of speech in situations of counterterrorist operations. In particular, there were proposals to expand the ban
on terrorism propaganda, or the justification of terrorism or extremism in
mass media outlets and other sources of information, up to the ban on information “which serves as propaganda or justification of extremist activities, including that containing utterances aimed at precluding counterterrorist operation, propaganda, and/or justification of resistance to the
conduct of a counter-terrorist operation.” The application of such an
amendment is broader than it might appear on the surface — we must
remember that the war in Chechnya is formally a counter-terrorist operation, conducted on the basis of the law on terrorism, and if such an
amendment was enacted, any attempts to organize a comprehensive discussion of the Chechnya issue in the press would become illegal. With record-breaking haste these amendments were approved by the State Duma
and the Federation Council. But apparently realizing that such legislation
would be too notorious, the authorities responded to the call on the part of
a group of key mass media outlets’ leaders (including a number of stateowned), and the President vetoed the bill. But the amendments themselves
did not disappear. They were forwarded to a special conciliatory commission and now no one can say with certainty if they will be adopted in a
milder form later on or just remain dangling over the head of the mass
media like the sword of Damocles. In any case, journalists promised the
President to develop self-regulation mechanisms to apply to the coverage
of anti-terrorist operations. However, we hold a little reservation: though
we wholeheartedly support all initiatives of the journalistic community
aimed at self regulation, in these particular circumstances journalists’ good
will seems to be obtained through blackmail.
* * *
Moscow law enforcement bodies, incapable of preventing the large-scale
terrorist attack in downtown Moscow, were trying to prove their efficiency
during the crisis and especially during first weeks after the assault in their
usual manner. Just like after the explosion of apartment buildings in Moscow in the fall of 1999, the capital saw a wave of “checks” on people from
the Caucasus. Apart from the traditional street ID checks, police were visiting apartments, searching, and arresting people. It goes without saying
that Chechens were the first victims of such practices. The legal aid clinic
of the Civic Assistance Committee9 alone received about 40 complaints
against arbitrary conduct by the police. According to the organization
leader, Svetlana Gannushkina, they registered six episodes of initiating
false criminal cases related, as a rule, to drugs. Besides this, there are cases
9
A prominent Moscow-based human rights NGOs working on the rights of refugees and migrants.
14
of people being fired by employers and Chechen children being expelled
from school.10
One of the most shocking cases in this vein is the arrest of Ya. Neserkhaeva, a Chechen young woman living in Moscow, who also happened to
be a hostage at the theater center . She did not reveal her origin in solidarity with the Russian girl friend with whom she had come to see the
musical.11 Directly from the hospital where she had been taken after the
assault, she was brought to jail hospital #20, and from there straight to a
pre-trial detention facility. There, she was finger-printed, then photographed, and her voice was recorded. She was kept in jail for ten days (the
maximum term if no charge is brought) without being interrogated even
once. Finally, she was released with no charge brought against her. There
is every reason to believe that she was freed thanks to the active involvement of a number of human rights organizations and highly professional
lawyers.
Also, we cannot fail to mention the arbitrary detention of A. Gelagoev on
October 25, that is, before the storm of the building. According to him, in
the police vehicle, a bag was put over his head and then he received a
cruel beating. The police were shouting, “You hate us and we hate you!
We will do you in!” In the Moscow City Police Department (GUVD), they
tried for several hours to make him sign the text of his “confession,” which
they had previously written, to the effect that he was “an ideological organizer of the terrorist attack.” Having failed, the police let him go, but
only after he signed a paper stating that he came to Moscow GUVD of his
own free will, and that he had no complaints.
According to VTsIOM, 30% of the Russian population thinks that “the
withdrawal of all Chechens from Moscow and other regions of Russia is
the most effective way to ensure “security for people.”12 From the point of
view of Russian human rights organizations, authorities do not take adequate measures to ensure the safety of ethnic groups. Russian and international experience shows that after a major terrorist attack an outburst of
interethnic tension is inevitable. To prevent possible incidents, several public statements of a general nature are not enough. Moreover, some of these
statements are at times rather ambiguous. Moscow Mayor, Yu. Lushkov,
said, for instance, “We do not give any privileges to any nationality in
Moscow. At the same time, we will not allow a negative attitude towards
Caucasians.”
Freedom of Speech
The process of the creation of a new information environment that was
initiated by the Administration of President Putin and that significantly
limits the freedom of mass information appears to have completed at the
federal level in 2002.
By 2000, the situation in the sphere of television broadcasting was as follows: two of the four television channels broadcasting in the meter-length
wave diapason and covering the widest audience were controlled by busi10
“Oppression of Chechens in Moscow.” Prima (November 5, 2002).
From the very onset terrorists expressed readiness to release all Chechens, Georgians and
Abkhasians.
12
VTsIOM. Muscovites about North-East Hostages.
11
15
nessman B. Berezovsky (ORT and TV-6), the NTV television company was
part of the “Media-Most” holding owned by V. Gusinsky, and the RTR was
a state-owned channel.
In 2000, claiming to have been pressured by the Presidential Administration, B. Berezovsky was forced to sell his shares and give up control over
the open joint stock company “Public Russian Television” (ORT) in favor of
the state.13 On April 14, 2001, following a lengthy confrontation between
the semi-state company “Gazprom”14 and the “Media-Most” holding, the
new NTV management, which in fact had been put together by the “Gazprom-Media” company, escorted by their security service occupied NTV
premises, and on November 27, 2001, in accordance with a court ruling,
the “Gazprom-Media” obtained the control packet of NTV shares.
In the same year, the private pension fund “Lukoil-Garant,” owner of 15%
of shares of the MNVK — the holder of the broadcasting license of the
TV-6 television company — initiated a lawsuit to liquidate the company (in
compliance with Article 35 of Federal Law “On Stock Companies”) on the
basis of the fact that company’s liabilities had been exceeding the overall
value of its fixed assets for over two years. Article 35 had rarely been applied previously and was actually excluded from the new version of the
law that entered force on January 1, 2002. But it was a sufficient formal
reason for the Presidium of the RF Supreme Arbitration Court to decide
on January 11, 2002, in favor of the liquidation of MNVK. On January 22,
the Ministry of Press stopped the broadcasting of TV-6 even though the
beginning of the company liquidation process did not automatically imply
the loss of its broadcasting license.
What deserves attention is not only the fact that the TV-6 television company was owned by B. Berezovsky, who had been in opposition to federal
authorities since summer of 2000. It is also remarkable that the “LukoilGarant” filed its lawsuit soon after a group of NTV journalists led by Ye.
Kiselyov (former Director General of NTV and TV-6) that had found itself
at variance with the change of NTV management went to work for the
TV-6, and Ye. Kiselyov was appointed acting Director General of the company.
When the Ministry of Press deprived the TV-6 of its broadcasting license it
announced a competition for the right to broadcast on the newly vacated
frequency. The journalists of Ye. Kiselyov’s team registered the “TV-6”
company to take part in the competition for the right to broadcast using
the frequency previously occupied by MNVK. They were later joined by a
group of prominent entrepreneurs including A. Chubais, head of the stateowned United Electric Systems of Russia (RAO EUS) company. Together
they registered closed joint-stock company “Channel Six,” which submitted
an application to take part in the competition. Later however, the group of
competitors was joined by noncommercial partnership “Media-Socium” co13
Officially, the state owns 51% of ORT shares; B. Berezovsky sold 49% of the shares to
R. Abramovich who in turn entrusted them with the “Savings Bank of Russia” (60,57% of its
equity capital shares is owned by the RF Central Bank). The Board of Directors of this television company consists of a number of high-rank officials, including: first Deputy Minister of
Property Relations of RF, A. Braverman, Press Secretary of the RF President, A. Gromov,
and first Deputy Minister of the Press, Television and Radio Broadcasting and Mass Media,
M. Seslavinsky.
14
37% of company shares are owned by the state. Representatives of the RF Government and
the Presidential Administration constitute one half of the company’s Board of Directors.
16
headed by former Russian Prime-Minister, Ye. Primakov, and President of
the Russian Union of Manufacturers and Entrepreneurs, A. Volskiy. Following a series of negotiations, “Channel Six” withdrew its application and
joined the “Media-Socium” as a partner. It was “Media-Socium” that won
the competition on March 27. The new and essentially the only private
television channel, TVS, began its broadcasting on June 1, 2002.
Theoretically, the TVS management structure (license holder — “MediaSocium,” investors and shareholders — a diverse group of businessmen
and “Channel Six”) reduces the possibility of controlling the information
policy of the channel by any single party. Still, the federal power whose
representatives, including RF President V. Putin, according to unofficial
mass media reports, took the most active part in putting together this
management structure, is safeguarded from the appearance of an opposition television channel, because the TVS became controlled by a very diverse group of politicians and businessmen who could hardly ever be able
to reach a tangible consolidation.15
In the meantime, the state essentially preserved control over the NTV
television company. Notwithstanding numerous declarations of the “Gazprom” management, the NTV television company, as well as other media
structures remained property of this company which had preserved 51% of
its shares in the “Gazprom-Media.” The investor that bought 49% of shares
of the “Gazprom-Media” was the “Eurofinance Bank” that had been established in 1990 by the Eurobank (a daughter company of the Central Bank
of Russia16) and the Vneshtorgbank.17
Thus, in 2002, out of six meter-length wave television channels four were
directly or indirectly controlled by the federal power (ORT, RTR, NTV,
and Culture), one — by the Moscow government (TVC), and one – by politicians and prominent businessmen loyal to the Kremlin (TVS).
All of the above does not mean that television journalists (primarily those
working for NTV and TVS) did not allow themselves to criticize the policies of federal and other authorities. However, possibilities of the federal
power to determine and influence information policies of television channels have significantly expanded in comparison with the B. Yeltsyn period.18
During 2002, mass media repeatedly reported on cases when following the
airing of programs that criticized authorities officials of the Administration
of the RF President and the Ministry of the Press coerced administrations
and shareholders of respective television channels to change editorial policies or dismiss certain journalists.
Mass media began to experience an especially strong pressure after the
androlepsy crisis at the Dubrovka theater center in Moscow in October
15
It became obvious that the structure created by this method proved to be not compatible to
life. Chanal TVS has existed only one year. On June 22, 2003 the Ministry of Print switched
of the air.
The main reasons were financial problems. But political motives cannot be excluded as well.
16
Back then – the Central Bank of the USSR.
17
Back then – the Vneshtorgbank of the USSR.
18
The same concerns the “Echo of Moscow” radio station. Although it has preserved its previous management and is conducting an independent information policy it cannot help considering the fact that the control packet of its shares belongs to the “Gazprom.”
17
2002. Mass media were publicly criticized by RF President V. Putin. When
meeting with mass media representatives he accused some of them of
“having deliberately ignored the agreements with the Ministry of the Press
and the instructions of the operative headquarters which acted in strict
compliance with the law on combating terrorism.”19
As it has been mentioned before, pro-government factions in the RF State
Duma initiated the adoption of a number of amendments significantly restricting the freedom of speech which were approved by the Federation
Council. The RF President however vetoed the draft legislation having
suggested that the journalist community should independently develop
corporate behavior rules.20
All of the above may be interpreted as not only authorities’ situational disapproval of activities undertaken by mass media which commented on the
tragic events, including the actions of special law-enforcement troops, as
well as showed interviews with hostages and their relatives, but also as a
continuation of a consistent campaign to restrict the freedom of mass information.
19
“Putin Vetoes Amendments to Mass Media Law Approved by the Parliament.”
NEWSru.com (November 25, 2002).
20
See section “Response of Authorities.”
I
ALTERNATIVE NGO REPORT
ON OBSERVANCE OF ICCPR
BY THE RUSSIAN FEDERATION
INTRODUCTION
The Alternative NGO Report on the Observance of the International Covenant on
Civil and Political Rights (ICCPR) by the Russian Federation from the period of
1997 to 2002 has been prepared jointly by several Russian non-governmental organizations: Moscow Helsinki Group, Memorial Human Rights Center, Center for
Assistance to International Protection, Nizhnii Novgorod Committee against Torture, Information Center SOVA, Center for the Development of Democracy and
Human Rights, the Glasnost Defense Foundation, the Independent Council of Legal
Expertise, Interregional Group “Human Rights Network,” the Movement for Human Rights, and the Center of Social Labour Rights. The Moscow Helsinki Group
coordinated all work on the Alternative Report, and also assumed responsibility as
the Report’s editor.
The Alternative Report was submitted to the UN Human Rights Committee in connection with the Committee’s consideration of the Fifth Periodical Report of the
Russian Federation on compliance with the International Covenant on Civil and
Political Rights (ICCPR). The Alternative Report is intended to fill in certain gaps
regarding the information provided by the Russian Federation to the Human
Rights Committee, and to highlight issues pertaining to the observance of civil and
political rights in Russia.
While working on the Alternative Report we did not seek confrontation with the
official position of the Russian Federation, and did not try to disprove the official
information and conclusions they made. We do not deny that over the last five
years a number of positive changes have taken place with regard to the observance
of certain rights — primarily those concerning penitentiary standards and judicial
reform. Our task was to present a position which differs from the official one in
order to allow the Committee’s experts to form the fullest and most objective opinion of the problems in the observance of civil and political rights in the Russian
Federation. For the same reason, in the Alternative Report we tried to avoid repeating general information presented in the Fifth Periodical Report of the Russian
Federation.
It must be noted that in the Alternative Report we intentionally did not comment
on Articles 1, 5, 11, 15, 16 and 27—53 of ICCPR, as we did not deem it appropriate.
The Alternative Report concludes with recommendations which cover all ICCPR
articles commented on in the Report.
The Alternative Report makes wide use of the information submitted by many
Russian human rights organizations and other NGOs, with relevant sources indicated in the corresponding sections of the Report. The absence of a reference to the
source of information means that the information was supplied by one of the
aforementioned organizations which acted as contributing authors to the Alternative Report. For additional information please contact the Moscow Helsinki Group
at mhg-main@online.ptt.ru.
21
SUMMARY
The 1993 Constitution of the Russian Federation includes the basic rights
and freedoms proclaimed in ICCPR. Moreover, according to the Constitution
(Article 12), the international obligations of the Russian Federation take priority over national law. However, despite the fact that the Constitution establishes the State’s obligation to observe and protect human rights (Article
2), both the bodies of power as a whole and their individual officials regularly violate the rights and freedoms of human beings and citizens.
In some cases, one can speak about a consistent state policy of disregard
for international and national standards in the field of human rights, when
government agencies, primarily enforcement structures, are granted authority which is not clearly defined in legislation, resulting in the absence
of real control over their activities.
The most vivid manifestation of this trend is the situation in the zones of
armed conflict in the Chechen Republic — a situation that was placed outside the framework of national and international law. This armed conflict,
which has lasted for many years on a territory of 15 000 km2, entails widescale hostilities and the use of combat aviation, has led to the death of
thousands of people, and is defined by authorities as a “counter-terrorist
operation”1, thus bringing it out of the sphere of operation of international
humanitarian law. In the territory of the Federation where this subject is
concerned, a state of emergency has not even been officially declared. Under these conditions, and in the absence of any effective control, representatives from enforcement structures commit numerous crimes against civilians, and, in the course of special operations, lawlessness merges with
criminal practices as such.
Although the RF Constitution has “the highest legal force” and “direct action” (Article 15), the exercise of human rights and freedoms is often limited by insurmountable procedural restrictions. Thus, the liberty of movement and the freedom to choose one’s residence are extremely hampered
by the passport system and registration regime. While under Federal Law
“On the Right of Citizens to the Liberty of Movement and Freedom of the
Choice of Residence within the Russian Federation” registration is provided for as a notification procedure, a multitude of formal conditions established by various bylaws and regulations for receipt of “registration at
the place of residence” and “registration at the place of stay” allow the
authorities to refuse registration without any valid reasons. Yet at the
1
This means that “the operation” is regulated by Federal Law “On Fighting Terrorism,”
which essentially must deal with operations of a local nature according to their duration and
territory.
22
same time, the absence of registration would be an administrative offence
depriving a person, even a Russian Federation citizen, of the majority of
their rights and social guarantees.
The violation of civil and political rights by the authorities is largely made
possible by the absence of effective control over their activity, ineffective
judicial protection, and opposition to civilian oversight at both the legislative and executive levels. For instance, a draft law for civilian oversight of
the observance of human rights at places of forced confinement has not
been adopted to this day.
In some spheres, gross violations of civil and political rights are committed
on a wide scale.
Over the past several years it was becoming increasingly clear that the policy of the bodies of power is to put the interests of the state (primarily issues connected with sovereignty and security, etc.) above the interests of the
individual, including such fundamental individual rights as the right to life.
Apart from the long-lasting Chechen campaign, characterized by a disproportionate use of force, out-of-court executions, torture and cruel treatment,
and other blatant violations of the population’s human rights, the latest
event which vividly evidences this trend is the situation centered around the
capture of hostages by terrorists at the theater center on Dubrovka (Moscow, October 23—26, 2002). As the authorities made it their main objective
to annihilate the terrorists, the operation carried out to seize the theater
center resulted in the death (not at the hands of the terrorists) of over 120
hostages, according to official data. Because the law enforcement structures
concentrated on the preparation of the attack and did not coordinate their
efforts with the other participants in the operation, including members of
the rescue services and medics, and because of the use of “special means,”
the operation took a heavy toll on life which could have been avoided.
Meanwhile, top-officials of the Ministry of Internal Affairs and the Federal
Security Service insist that the operation was well coordinated and ended
successfully (as all the terrorists were killed).
The official standard by which the work of law enforcement bodies and special services is evaluated is the number of crimes exposed and cases solved.
This is one of the main reasons why officials from corresponding departments use unlawful methods in their work, ranging from procedural infractions and falsification of cases (spy cases, cases against Chechens charged
with drug trafficking, unlawful possession of arms, etc.) to the use of torture.
Sometimes, “in the interests of investigation,” people are kept in pre-trial
detention for years. In 1994, summarizing the results of his visit to Russia as
a UN Special Rapporteur on Torture, Nigel S. Rodley described the condition
of prisoners in Russian pre-trial facilities as “shocking,” “particularly inhumane,” “cruel, degrading,” and “torturous.”2 Since that time, and particularly
after the Chief Department for Penalty Execution was placed under the jurisdiction of the RF Ministry of Justice, the situation has somewhat improved. However, harsh prison conditions, coupled with the indiscriminate
use of confinement, occasionally for long periods of time, are still utilized by
law enforcement authorities with the aim of “breaking the will” of the prisoners “with the intention of eliciting confessions and information”3 — from
this standpoint, these measures remain torturous.
2
Report of the Special Rapporteur, N. Rodley, submitted pursuant to Commission on Human
Rights Resolution 1994/37, E/CN.4/195/31. Add. 1, November 16, 1994.
3
Ibid.
23
The judicial system does not provide effective protection for the victims of
these and other human rights violations. The courts are dependent on the
executive power for financing. Also, the executive branch has quite an impact on the formation of the judicial bench.4 Besides, true to the tradition
formed in Soviet times, judges continue to see themselves as part of the
state machinery, and, in most cases, show solidarity with the state prosecution5 or, as the case may be, with the government agency officials whom
laypersons try to bring to justice. Internal monitoring of the executive
power is ineffective because of the strong corporate solidarity among officials from different departments, with the existing bureaucratic system
often resulting in the fact that a complaint of abuse from officials is considered and acted upon by the high-ranking officials from the same organization where the subject of the complaint works. Moreover, the district-level prosecutor’s office, which, among other things, is responsible for
the examination of claims of torture of detainees, persons under investigation, and witnesses, is at the same time the body charged with investigation — in close cooperation with the police — of criminal cases in the
course of which such torture and cruel treatment are used by the police.
As far as law enforcement officials’ use of torture and other prohibited
methods is concerned, the Chechen Republic represents a kind of experimental site through which units of the Ministry of Internal Affairs pass by
rotation, sharing in the practices of violence, outrage, lawlessness, and impunity. After coming back from Chechnya, these enforcement body officials use this experience in their own regions. On top of that, the ongoing
conflict in the Chechen Republic greatly fosters the ethnic discrimination
which has become a norm in the behavior of government officials and the
public at large in Russian regions. In the Russian Federation, it is generally
the Chechens and Caucasians who often fall victim to unlawful police action6 and various practices employed by government agencies that restrict
their liberty of movement and freedom of the choice of residence. These
practices, in turn, restrict access to many rights and social guarantees.
From the standpoint of discrimination, a very special situation has taken
shape in the Krasnodar territory, where the authorities consistently pursue
a policy aimed at ousting the Meskhetian Turks from the region. Since
1989 they have refused to grant Meskhetian Turks residence permits, and
since 1991 deny them registration and Russian citizenship, using this to
systematically oppress and restrict the rights of this group.
The federal authorities, on their part, do nothing to check the lawlessness
of the Krasnodar authorities, and grant the Meskhetian Turks Russian citizenship, to which they are entitled because they came to the territory of
Russia before the entry into force of the 1991 Federal Law “On Citizenship
of the Russian Federation.”
4
Preliminary discussion of candidates for judges' positions is carried out by the Commission
under the President of the Russian Federation (Presidential Decree #1185 of October 4, 2001)
which is dominated by the representatives of the enforcement structures and officials of the
President’s Administration. Out of 17 members of the Commission, five members represent
the prosecutor's office, the Ministry of Internal Affairs and other law enforcement bodies, and
seven members represent the presidential structures; the judicial bench is represented by
merely three members.
5
Up to 2002, the proportion of verdicts of not guilty did not exceed 1%. According to the
latest data, this figure has slightly increased and is now 2%. However, many experts from the
legal community believe that this improvement is unstable.
6
Ranging from unlawful detention and extortion to falsification of criminal cases.
24
Such a position on the part of the federal authorities comes as no surprise
in light of the latest legislative innovations in the sphere of citizenship and
migration — namely the new Federal Laws “On Citizenship of the Russian
Federation” and “On the Legal Status of Foreign Nationals,” which entered
into force in 2002.
At present, thousands of citizens of the former USSR (according to some
authorities, this group includes anywhere from half a million to over three
million people) who have received neither Russian nor any other citizenship, mainly due to the difficulties of the bureaucratic procedure, reside
permanently on the territory of Russia. Under the old (1991) citizenship
law, such people were entitled to a simplified procedure for receipt of Russian Federation citizenship and the Soviet passport remained a legal form
of personal identification.
However, the new citizenship law does not provide for a simplified procedure for citizens of the former USSR to receive Russian Federation citizenship (with the exception of certain groups), and under the newly adopted
Federal Law “On the Legal Status of Foreign Nationals in the Russian Federation” citizens of the former USSR run into unsolvable problems when
trying to receive a residence permit and may be deported. As of 2004,
when Soviet passports will no longer be valid as a legal form of identification, these persons will find themselves in a complete legal vacuum.
In a brief assessment of the situation regarding the observance of civil and
political rights in Russia one cannot help but note the consistent deterioration of the conditions in spheres as fundamentally important for the subject of political rights as freedom of speech and the electoral process.
In 2000, the ubiquitous practice of regional authorities pressuring independent media has been elevated to the federal level. Control was established over all federal TV channels, and the print media that remain independent have to work cautiously, mindful of the position of the President’s
Administration.
The institution of elections is becoming increasingly quasi-democratic and
quasi-competitive as a result of the executive power’s unlawful interference on all levels of the electoral process. Often, citizens are offered to
elect candidates de facto, one of whom is “doomed to win.” Real competitors are barred from participation in the election campaign by means of
administrative levers, or have to face various obstacles when campaigning.
Election commissions and courts often show bias in such cases. Voting results are sometimes rigged, but such falsifications rarely make it to court.
All these and other negative trends in the observance of ICCPR in Russia
have been described in detail in our Alternative Report. We hope that the
Alternative Report will be useful for the experts of the Human Rights
Committee in facilitating constructive dialog between the Committee and
the Government of the Russian Federation.
ARTICLES
ARTICLE 2
1. Each State Party to the present Covenant undertakes to respect and to ensure
to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.
Paragraph 1, Article 19 of the 1993 RF Constitution declares that “all people are equal before law and in a court of law.” Paragraph 2, Article 19
envisages that:
The state shall guarantee the equality of the rights and liberties of a human being and citizen irrespective of sex, race, nationality, language,
origin, property status and official position, place of residence, attitude
towards religion, convictions, membership in public associations as well
as other circumstances. All forms of restriction of civil rights on account
of social status, race, nationality, language or religion are banned.
Under Paragraph 2, Article 17 of the RF Constitution, “the basic rights and
liberties of a human being are inalienable and belong to everyone from
birth.” Paragraph 3, Article 55 declares that “Human rights and civil liberties may be restricted by the federal law only to the extent required for the
protection of the fundamentals of the constitutional system, morality, health,
rights and lawful interests of other persons, for ensuring the defense of the
country and the security of the state.” Under Paragraph 3, Article 62:
Foreign citizens and stateless persons enjoy in the Russian Federation the
rights of its citizens and bear their duties with the exception of cases
stipulated by federal law or the international treaty of the Russian Federation.
Standards proclaiming the equality of human rights and civil liberties regardless of nationality, skin color, language, religion, social origin or other
circumstances are also found in this branch of legislation. However, neither
the Constitution nor current legislation provide for a direct ban on discrimination, offer any effective remedies against discrimination, or provide
reimbursement for damage inflicted.1
Unfortunately, in practice, one observes continuous deviation from the principles of the inalienability, universality, and equality of one’s basic rights
and liberties. Most notable is the public authorities’ (both state and munici1
Also see the section on Article 26 of ICCPR in this report.
26
pal) non-recognition of the basic rights and liberties of large categories of
persons, and their discriminatory treatment of such persons on the following
grounds:
1.
2.
3.
4.
5.
non-availability of identification papers;
place of residence (registration of residence);
citizenship;
ethnicity;
membership in public associations.
1. The non-availability of identification papers to a person within the
boundaries of the Russian Federation, irrespective of his/her citizenship
(including a person whose RF citizenship is not challenged by authorities),
implies his/her inability to exercise in full the rights guaranteed under Articles 9 (1), 12 (1 and 2), 14, 16, 17, 23 (2), 24, 25 of ICCPR. In practice, the
only document identifying him/her as citizen of the Russian Federation
within the boundaries of the country is a regular domestic passport of a
Russian citizen.2 A person who has no passport is restricted in his/her
freedom of movement, specifically, as he/she finds himself/herself, in accordance with the RF Government’s March 11, 1999 Decree #277, in no
position to acquire railway or air tickets, as he/she has no right to obtain a
passport for traveling abroad, and, consequently, to leave the country.
Such a person is also deprived of the right to choose a place of residence
since he/she is unable to register himself/herself at his/her place of residence. He/she may, by administrative order, be detained, virtually without
the right of appeal, for a period of up to 30 days “to establish his identity.”
He/she also suffers restrictions as far as access to justice is concerned as
the courts won’t accept civil suits, complaints, or applications from persons
not possessing passports for domestic use. In the absence of a passport, one
finds it impossible to register his/her marriage. A person without proper
identification papers comes under restrictions concerning the right of access to information inasmuch as, according to the established practice, one
may not become a member of a public library without a passport. In the
absence of a passport, a citizen may not take part in elections or be employed at a job in civil or municipal service.
In theory, every citizen of the Russian Federation who has reached the age
of 14 is not only entitled, but obligated to obtain a passport for domestic
use, and is free to do so regardless of the availability of registration of
residence. In practice, however, due to numerous insurmountable conditions of procedure existing within the passport system, and also because of
the established administrative practice, one quite often finds it impossible
to obtain a passport in the absence of registration of residence at any point
in the territory of the country. For instance, obtaining a passport is often a
problem confronting persons recently released from prison who, for whatever reason, have lost their certificate of release. It is important to note
that if a citizen has permanent registration anywhere in Russia, he/she
finds himself/herself unable to obtain or re-establish a passport at any
place in the country other than the place of his/her permanent registration. For instance, this problem is very relevant for persons with residence
registration in the Chechen Republic who have left the territory of the
Republic, as even a short-term trip back there is dangerous for them.
2
To travel abroad, a Russian citizen must have a traveling passport (“foreign passport” — in
literal translation from Russian).
27
A similar situation is that of many Russian citizens who formally reside
permanently outside the Russian Federation, possess a passport for traveling abroad (but no domestic passports since although they are Russian citizens they are not residents of the Russian Federation, and their travel
passports bear the stamp “for permanent residence abroad”), and now intend to officially transfer their residence to Russia. In theory, RF citizens
moving into the country from abroad are provided with the possibility to
obtain temporary registration to use in order to acquire a domestic passport. In practice, inasmuch as a RF passport for traveling abroad is not an
identification document within the boundaries of the Russian Federation,
citizens of the country arriving from other states, including but not limited
to constituent parts of the former USSR, are quite often unable to legalize
themselves in the territory of their own country of citizenship.
2. Regional statutory acts and nationwide law enforcement traditions lead
to the fact that a RF citizen residing in a region, or even locality (city, village, settlement) of the Russian Federation without registration in that
particular region or locality enjoys quite a different (significantly more limited) scope of rights and liberties in comparison with another RF citizen
having local registration. Moreover, many citizens are compelled to reside
at a certain place as they, either objectively, i. e., by no fault of their own,
fail to meet the requirements of the passport system, or are arbitrarily denied registration by authorities. The restrictions imposed for reasons of
registration are mainly related to social and economic rights (the right to
work, to dispose, possess, and use property, to social security, and medical
service), although they also tend to affect civil and political rights — the
right of entering into marriage, of inviolability of private and family life, of
access to justice, of participation in elections.
3. Apart from statutory legal distinctions between the rights of the RF citizens and those of aliens, there exist numerous unjustified restrictions regarding foreign nationals, stateless persons, and also persons not recognized
arbitrarily by authorities as citizens of the Russian Federation. Such restrictions mainly concern the rights protected under Article 12 of ICCPR.3
Citizens of the Russian Federation that are in the situation of being stateless persons, i. e., those actually not recognized as RF citizens, are unable to
receive identification papers.
There also exist several categories of citizens of the former USSR who cannot be citizens of any other state except the Russian Federation (primarily,
Meskhetian Turks residing in the Krasnodar territory) and who, according
to the established practice, are denied having their former Soviet passports
exchanged for the new Russian ones. For example, a resident of Russia who
used to reside in some region of Russia under temporary registration at the
time of entry into effect (February 6, 1992) of the 1991 Law “On Citizenship
of the Russian Federation,” and who is presently residing under temporary
registration or without registration altogether, is in no position to receive a
passport of the new type. December 31, 2003 is the final date of expiry of
the 1974-type USSR passports, after which date there will emerge a considerable layer of the population virtually deprived of all their rights.
Moreover, the authorities are applying arbitrary criteria not based on law to
qualify the stay of a person in the Russian Federation as “illegal,” which
3
See the section on Article 12 of ICCPR in this report.
28
serves as the ground for non-recognition of their basic rights and liberties.
The lack of registration of residence or stay, whatever the reason for that
may be, whether the element of guilt is present or not, is taken as an administrative offence, with an issue of administrative offence superseding
that of the lawfulness of stay in the territory of the country. Not recognized,
contrary to law, as citizens of the country and treated as “illegal immigrants,” former Soviet citizens, not having infringed upon any formal legal
requirements, find themselves deprived not only of the right to liberty of
movement and choice of residence, but also of rights such as the liberty and
inviolability of person, access to justice, and the inviolability of dwelling.
Under the 2002 Federal Law “On the Legal Status of Foreign Nationals in
the Russian Federation,” foreigners residing in the Russian Federation on a
temporary residence permit are formally deprived of the right to move
with the aim of changing the place of residence outside the subject of the
federation specifically allocated to them. By implication of the law, they
are also deprived of the right to change their place of residence altogether,
as they are unable to change their registration of residence. Foreign nationals permanently residing in the Russian Federation suffer restrictions
as to the right to leave the country: they have to obtain exit visas. Stateless persons permanently residing in the Russian Federation are virtually
deprived of the right to exit the Russian Federation since “A”- series identification certificates issued to them have not been introduced to the international community. Citizens of the former USSR holding former USSR
passports with no indication therein of their contemporary citizenship,
have been deprived of the right to cross the state border, i. e., to exit the
country, since the mid 90-s.
4. Some ethnic groups in the country have been subjected to continuous
discrimination to the point of non-recognition of their basic rights and liberties. As a rule, such discrimination is based on denial of registration of
residence and control over compliance with the regime of registration. The
authorities of the Krasnodar territory, with the overt backing of federal
authorities, have been pursuing a policy of persecution and ousting of the
Meskhetian Turks from the territory of Russia. This policy entails denying
them registration of residence, which, consequently, results in restrictions
being placed on all basic rights. It is noteworthy that the registration in
the Krasnodar territory is denied not only to the Meskhetian Turks who
are not recognized by territorial authorities as Russian citizens (i. e., those
who have settled in the Krasnodar territory right after their organized
evacuation from Uzbekistan), but also to those Meskhetain Turks who have
obtained registration and legalized their Russian citizenship in other RF
regions, yet want to permanently reside in, and therefore register for residence in, the Krasnodar territory.
Chechens are continuously subjected to discrimination, persecution, and
restriction of rights throughout the country; of special concern is the practice of fabricating criminal cases against Chechens, and then convicting
them on obviously trumped-up charges.3
A serious problem is posed by the discriminatory treatment practiced by
law enforcement authorities with regard to ethnic minorities, primarily
nationals of the Caucasus, Central Asia and also the Roma, which is manifested in arbitrary identification checks, the search of living premises, and
3
29
detentions, i. e., infringement upon the rights protected under Paragraph 1,
Article 9 and Article 17 of ICCPR.
5. Discrimination on grounds of membership in public associations is evidenced by preference in the access to civil service (i. e., concerning exercise
of the right protected under Paragraph 3, Article 25 of ICCPR), which the
state offers to members of Cossack organizations. The Cossack movement is
campaigning for the revival of a special paramilitary group that existed
prior to 1917, and is also seeking special and sectional rights to be granted
their members. By way of the 1996 Presidential Decrees #563 and #882,
members of Cossack communities were granted special preferential access
to civil and also other types of public service. The 1999—2001 Federal Program of Support of Cossack Communities endorsed in 1999 by Decision
#839 of the RF Government once again confirmed an earlier official policy
aimed at the integration of Cossack formations within structures of power,
and at granting them privileges in regards to civil and other types of service. As a result, Cossacks enjoy a special mechanism of access to various
types of service (civil service, including paramilitary and also municipal
service). Cossack societies put on the register are free to make special
agreements with the bodies of authority about doing service (law enforcement, military, etc.), and can offer up their candidates for certain offices.
Meanwhile, the RF Constitution and legislation at all and any level provides for equal access to all types of service, regardless of origin and membership of any associations. Besides which, the 1991 RSFSR Law “On the
Rehabilitation of Peoples Subjected to Repression” defined Cossacks as “a
cultural ethnic community,” and equated them with ethnic groups. This
position has been reaffirmed by several more recent statutory acts. Thus,
the privileges granted to the Cossacks may, in a formal sense, be regarded
as discrimination on ethnic grounds.
* * *
2. Where not already provided for by existing legislative or other measures, each
State Party to the present Covenant undertakes to take the necessary steps, in
accordance with its constitutional processes and with the provisions of the present
Covenant, to adopt such legislative or other measures as may be necessary to give
effect to the rights recognized in the present Covenant.
Upon the 1993 adoption of the RF Constitution, the universally accepted
principles and norms of international law and the international treaties of
the Russian Federation became part of its legal system, and have prevailed
over federal laws and laws of the subjects of the Russian Federation (Paragraph 4, Article 15 of the RF Constitution). The doctrine of transformation,
implying the operation of ICCPR through national statutory acts, was substituted by the principle of direct operation of international treaties.
Many Russian laws establishing the procedure for activities of bodies of
state authority served to seal in a particular version the norms obligating
those bodies to be guided by the international treaties of the Russian Federation (Article 1 of the RF Civil Procedure Code; Article 1 of the RF
Criminal Procedure Code; Article 4 of Federal Law “On the Police” of
April 18, 1991 (as amended on January 10, 2003); Article 3 of Federal Law
“On the Prosecutor’s Office of the Russian Federation” of January 17, 1992
(as amended on October 5, 2002); Article 6 of Federal Law “On the Security” of March 5, 1992 (as amended on July 25, 2002); Article 4 of Federal
Law “On the Bodies of the Federal Security Service in the Russian Federa30
tion” of April 3, 1995; Article 1 of Federal Law “On Fighting Terrorism” of
July 25, 1998, etc.).
Exceptions to this rule are represented by the following: legislation on the
judiciary (Federal Constitutional Law “On the Judicial System of the Russian Federation” of December 31, 1996; Federal Constitutional Law “On the
Constitutional Court of the Russian Federation” of July 21, 1994; Federal
Law “On the Status of Judges in the Russian Federation” of 26 June 1992
(as amended on December 15, 2001); legislation on the operative and investigation of often secret activity (Article 4 of Federal Law “On the Operative and Investigation Activity” of August 12, 1995). These statutory acts
make no mention of international treaties as sources of legal regulation. It
should also be noted that Article 1 of Federal Law “On the Prosecutor’s
Office” entrusts that body with an obligation to carry out supervision over
compliance with only “the RF Constitution and the implementation of laws
enforced in the territory of the Russian Federation,” rather than with international treaties.
Russia’s criminal procedure legislation has come to adhere to the norms
prescribing the resumption of proceedings in any case in which it has been
established by the European Court of Human Rights that the provisions of
the European Convention for the Protection of Human Rights and Fundamental Freedoms have been violated by the RF courts during their consideration of a criminal case; such a decision by European Court is regarded
as the so-called “new fact” (Article 413 of the RF Criminal Procedure
Code). However, Russia’s legislation provides no mechanism as to how the
acts of the UN Human Rights Committee may influence the procedure of
revising judgments earlier rendered.
The RF Constitutional Court has repeatedly referred to the provisions of
ICCPR in its decisions and rulings. Rare references of a similar type are also
found in decisions of the Plenum of the RF Higher Arbitration Court, and the
Plenum of the RF Supreme Court; the Plenums’ decisions offer clarifications
concerning issues of judicial practice (interpretations with regard to application of concrete legal norms) which are practically binding upon lower courts.
Nevertheless, the judicial and law enforcement practices testify to the fact
that, in cases of rivalry between international and national norms, the bodies
of authority, courts, and law enforcement agencies, as a rule give preference
to the provisions of national legislative acts and bylaws. The reason for such
a situation is that in order to assess the performance of officials, judges, and
law enforcers, departmental indicators are used, which do not allow for the
observance of human rights to be considered as criterion of the assessment.
Besides, the possibility for citizens to exert influence upon the activities of
authorities, courts, and other governmental agencies is insignificant, and
continues to diminish as a result of the consistent strengthening of control on
the part of the executive branch over the formation and activity of courts,
as well as because of the expansion of the executive branch’s practice of
manipulating election campaigns and decisions of legislature.
* * *
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has
been committed by persons acting in an official capacity;
31
(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by
any other competent authority provided for by the legal system of the State, and
to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when
granted.
In the Fifth Periodical Report of the Russian Federation submitted to the
UN Human Rights Committee, the government described a large number
of newly-adopted statutory acts in the field of the organization of courts,
which are to serve to guarantee human rights in the Russian Federation.
Regrettably, the general law enforcement practice in the Russian Federation, according to various Russian human rights organizations, testifies to
frequent violation of the majority of rights recognized under ICCPR.
Since 1998 the Moscow Helsinki Group, in cooperation with regional human rights organizations in all 89 subjects of the Federation, has been conducting a systemic country-wide monitoring of the human rights situation,
in the course of which cases of violation of the rights to non-judicial protection and fair trial have been recorded with distubing frequency.
The fact that human rights violations in Russia are massive has been confirmed by findings from sociological research. According to the data of a
survey conducted in December, 2001 by the ROMIR Independent Research
Center, 72% of the respondents believe that, on the whole, Russia is in violation of basic human rights (a mere 22.2% have a different opinion).4
Besides, the trust of the population enjoyed by authorities on the whole
and by judicial authority, in particular, is extremely low. Thus, the results
of the sociological research conducted by the INDEM Foundation showed
that 78.6% of the respondents do not rely on justice in a court of law.5 The
reasons for this will be given in more detail in this report in the section on
Article 14 of ICCPR.
The effectiveness of legal remedies is made up of several components: the
accessibility of those remedies to people; the powers of administrative, judicial and public forms of protection of human rights; the enforcement of
decisions of administrative, judicial, and other bodies aimed at the protection of human rights and liberties.
As to the accessibility of legal remedies, there is a wide range of state authority bodies that the RF citizens, as envisaged under the RF Constitution
and other statutory acts, have the right to apply to for the protection of
their rights and liberties. Unfortunately, application by itself does not imply that the applicant’s rights and liberties violated will be protected.
The judicial procedure for the protection of human rights is a common one.
However, the ineffectiveness of the judicial procedure for the protection of
human rights is sometimes due to the unsatisfactory situation with the actual enforcement of rulings, especially when, in accordance with a ruling of
a court of law, the state is obliged to make financial compensation or has
other pecuniary liabilities. An example of such non-fulfillment of a judgment, in which the RF acts as the obliged party, is the Burdov v. Russia
case, which was recently considered by the European Court of Human
4
5
See: www.romir.ru.
See: www.indem.ru.
32
Rights (2002) with Russia found in violation of the European Convention
(Article 6 and Article 1 of Protocol 1) and required to pay compensation to
Burdov. Burdov’s specific debtor was the Social Security Fund, financed
by the RF budget; nevertheless, within two years the local social security
branch’s budget had been compiled without any regard for the indebted
amount owed to Burdov. Therefore, Burdov had to appeal the actions of
bailiffs by lodging a complaint with the European Court of Human Rights
once again.
The special mechanisms and bodies existing in the Russian Federation,
such as the Ombudsman and the Presidential Human Rights Commission,
also fail to meet the aforementioned three criteria for the effectiveness of
remedies protecting human rights. To clarify, for victims of human rights
violations, application to those bodies does not guarantee revision of a case
in a court of law, or that any other actions will be taken by the authorized
officials. The said bodies only have the right to request that the relevant
agencies undertake certain actions. For instance, they may request that the
prosecutor’s office initiate criminal proceedings or reconsideration of a case
by exercising the prosecutor’s supervisory functions. Consequently, responses given by the Ombudsman or the Presidential Human Rights Commission have no legal force.
Thus, on the basis of data available to human rights organizations, one may
speak of the insufficient effectiveness of protection of human rights in the
Russian Federation both at the legislative, administrative, and judicial level.
It should be pointed out that the Russian Federation has assumed the obligation to comply with the jurisdiction of the UN Human Rights Committee, as directly stipulated not only under ICCPR, but also under the Optional Protocol thereto, i. e., the RF has recognized its citizens’ right to
apply on an individual basis to the UN Human Rights Committee, as well
as the competence of this body to consider applications against the violation of human rights by Russia.
As of now, the Committee has found and examined two complaints on
their merits lodged against the Russian Federation under the violations of
human rights — namely, Gridin v. Russian Federation and Lantsov v. Russian Federation.
In the Gridin v. Russian Federation case (in the year 2000) it was found
that the right to a fair trial had been violated, in so far as the failure to
provide security for the rights of the defendant and conditions for impartial court proceedings are concernced. The Committee required that the
Russian Federation restore the right that had been violated by providing
Gridin with effective remedies that would secure his immediate release
from custody and payment of compensation.
Up to now, the Russian Federation has taken no steps whatsoever to remedy Gridin’s violated rights. Only a small group of individuals in the country is even aware of the views of the Human Rights Committee in Gridin’s
case, as the authorities and mass media alike are withholding the data.
Meanwhile, the judicial corps is lead to believe that decisions of an international body whose jurisdiction has been recognized by the state are not at
all binding for execution, and accordingly equally non-binding are other
international acts, standards, etc.
33
In the Lantsov v. Russian Federation case (year 2002) the Committee found
that the right to life had been violated, and required that the Russian Federation pay out fair compensation; the Russian Federation failed to fulfill
their obligation voluntarily, and the applicants were denied compensation
in a court of law. Therefore, the Russian Federation fails to comply with its
obligations assumed under ICCPR and the Optional Protocol thereto.
ARTICLE 3
The States Parties to the present Covenant undertake to ensure the equal right of
men and women to the enjoyment of all civil and political rights set forth in the
present Covenant.
The national law is based on the prohibition of gender discrimination. In
accordance with Article 19 of the RF Constitution, “The State guarantees
the equality of rights and liberties regardless of sex” (Paragraph 2) and
“Man and woman have equal rights and liberties and equal opportunities
for their pursuit” (Paragraph 3).
Besides, Paragraph 4, Article 15 of the RF Constitution provides that “If
an international treaty of the Russian Federation stipulates rules other
than those stipulated by domestic law, the rules of the international treaty
apply” (including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified by the USSR in 1980).
The RF Labor Code (Article 3), the Family Code (Paragraph 3, Article 1),
the Criminal Code (Article 4) and other norms contain provisions prohibiting gender discrimination.
As was noted in the Fifth Periodical Report of the Russian Federation on
the observance of CEDAW, since 1997 the State Duma and the Government of the Russian Federation have adopted norms6 aimed at intensifying
the authorities’ actions in improving the status of women. However, the
provisions mentioned above mainly offer gender review, support to woman
in executive positions and business women, better social security for mothers, and so on. These efforts are certainly important, yet insufficient. Article 3 of CEDAW obligates the participating states to ensure “the exercise
and enjoyment of human rights and fundamental freedoms on a basis of
equality with men.” Thus, anti-discrimination measures, including legal
measures, are of principal importance.
The research done in 2000 within the framework of country-wide, systemic human rights monitoring by regional Russian human rights organizations and the Moscow Helsinki Group showed that “despite the abundance of norms forbidding discrimination, there is no mechanism to realize
them in practice, in particular no sanctions are provided for violation of
the existing legislation.”7
There are practically no norms directly countering discrimination or aimed
at establishing mechanisms to eradicate discriminating practices and re6
Concept of Legislative Activities on Ensuring Equal Rights and Equal Opportunities of Men
of Women and The Concept of Improving the Status of Women in the Russian Federation
respectively.
7
“Women’s Rights in the Russian Federation,” Human Rights in Russian Regions — 1999
(Moscow: Zatsepa, 2000).
34
store infringed rights. Besides, the relevant draft laws get no support from
legislators.
For instance, on April 26, 2002, the State Duma discussed an amendment
to Federal Law “On Basic Guarantees of Election Rights and the Right to
Take Part in a Referendum of Citizens of the Russian Federation,” which
was to reject lists of candidates if they were comprised of more than 70%
of persons of the same sex. The amendment fell short of the required
number of votes, and was not included in the law.
The monitoring of discriminating practices against women, carried out by
the Moscow Helsinki Group jointly with regional women’s organizations in
20 regions of the Russian Federation in 2002, proved, in particular, that no
region among those monitored had any anti-discrimination norms in place.
The overwhelming majority of Russian lawmakers at all levels see the
situation with women’s rights only from the perspective of the state’s implementation of its obligations to mothers and compliance with the principle of equality in legislation, overlooking any measures against existing discriminating practices, and providing equal opportunities for men and
women to enjoy the rights stipulated by law.
Russian courts now practice virtually no cases in connection with gender
discrimination, although in experts’ opinion, and considering the number of
complaints received by women’s and human rights organizations, the current discriminating practices pose a serious problem. Absence of a matrix,
which would allow for adequate consideration of discrimination cases, does
not permit the wronged person to prove the existence of discrimination.
The courts, in their turn, “refuse to consider such actions, demanding that
claims be rephrased (instead of ‘discrimination’ they insist on a reference
to a concretely violated right).”8
From the standpoint of equal access to rights, the problem of the lack of
women’s representation in the bodies of power is especially urgent. By law,
women have equal rights with men to elect and be elected. However,
women constitute only 7.6% of the State Duma membership and average
10% of regional legislative bodies. One of the obvious reasons behind this, is
the negative stereotype, common among the population, which considers
legislative activity a man’s line of work. At the same time, the authorities
not only ignore any efforts to change the public opinion, but plot election
campaign materials discrediting candidates on the grounds of their sex.
Flyers proclaiming a candidate’s inadequacy and dependence were used
against a woman running for the Saratov Regional Duma in 2002.9
Knowing the steadily declining proportion of women in the State Duma of
the Russian Federation in 1993—1999,10 the need to facilitate gender balance becomes apparent. However, the activities of Russian authorities can
mainly be reduced to the declaration of equality, with no mechanism in
place to realize it. For instance, lawmakers considered Paragraph 2, Article
4 of Federal Law “On Basic Guarantees of Election Rights and the Right to
8
Ibid.
Discrimination of Women in Contemporary Russia, Report based on the findings of a monitoring effort carried out in 2002—2003 the by MHG and women’s organizations in 20 Russian
regions (Moscow: Moscow Helsinki Group, 2003).
10
The State Duma of the first convocation (1993—1995) had 14% of women; its second convocation (1995—1999) comprised 10% of the female deputies.
9
35
Participate in the Referendum of Citizens of the Russian Federation”11 a
sufficient guarantee to ensure equal opportunities in realizing election
rights, and dismissed the above-mentioned amendment to the law, designed to ensure a 30% representation of women on voting lists of political
parties.
ARTICLE 4
1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant
may take measures derogating from their obligations under the present Covenant
to the extent strictly required by the exigencies of the situation, provided that
such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour,
sex, language, religion or social origin.
2. No derogation from Articles 6, 7, 8 (Paragraphs 1 and 2), 11, 15, 16 and 18 may
be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant,
through the intermediary of the Secretary-General of the United Nations, of the
provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on
the date on which it terminates such derogation.
The provisions of Article 4 of ICCPR were especially important for Russia
in 1994—2003, despite the fact that the state of emergency was only formally declared for the period of November 1992 — February 1995 in the
area of the Osetin-Ingush conflict. In a number of areas in the North Osetia Republic and the Ingush Republic, a state of emergency was not officially proclaimed, although it was introduced de facto in the area of the
armed conflict in the Chechen Republic in 1994—1996. The authorities of
the Russian Federation did not use the state of emergency regime to protect — through the legal limitation of the constitutional rights of citizens
— the people who suffered kidnapping in the areas around the Chechen
Republic.12 Instead, the regionalization of the Russian Federation was
accompanied with “creeping emergency,” with usurpation by the regional
powers of authority to limit the rights of citizens,13 with the legalization of
illegal armed forces,14 and with an increase in the number of enforcement
structures (law enforcement, military, special services) and of the scope of
their authority. A state of emergency was also not declared in the area of
the second Chechen armed conflict that has been going on since 1999. The
11
“Citizens of the Russian Federation have the right to elect and to be elected, to take part in
a referendum regardless of their sex…”
12
In 1991, before the launch of the armed conflict, federal power refused to make use of Federal Law “On the State of Emergency” to limit — within legal norms — the rights and freedoms
of people living in the area around the Chechen Republic: see, for instance, “Report On the
Situation in the Kursk Region of the Stavropol Territory” of April 8, 1999, and Open Letter of
“Memorial” Human Rights Center to the President of the Russian Federation, B. Yeltsin, “On
the Developments in the Northern Caucasus” of June 29, 1999. The government justified its
course of actions with far-fetched reasons that did not reflect the real situation.
13
They mostly limited the freedom of movement and the right to choose the place of residence, the rights of forced migrants and ethnic minorities.
14
Ranging from the universal “restoration of Cossacks,” to ethnic voluntary forces in Dagestan in August-September, 1999.
36
situation here is persistently driven beyond the framework of justice, both
national and international. A legal vacuum is artificially created,15 while the
legal situation and law enforcement practices established in the Chechen
Republic, in our opinion, determine to a great extent the situation with
human rights on the entire territory of the Russian Federation.
* * *
A non-international armed conflict is taking place in the Chechen Republic, and, while assessing the legal situation there, it is necessary to rely not
only on relevant ICCPR provisions, but also on those of international humanitarian law.
The government of the Russian Federation strove to avoid international
control in the area of the armed conflict by taking the situation out of the
domain of humanitarian law. Therefore, it treated these developments as
exceptional “internal affairs of the state,” thus avoiding the fulfillment of
its international obligations.
Officially, the conflict in Chechnya is called a “counter-terrorist operation,”16 but the main issue behind the conflict is the sovereignty of the
Russian Federation. The Russian government consciously and persistently
equates the fight against terrorism with the fight against separatism, with
the elimination of armed gangs and the restoration of sovereignty, and refuses to undertake a political settlement of the crisis, thus violating its international obligations.17
The Russian government avoids the term “armed conflict,” since the absence of an armed conflict implies the absence of sides to that conflict, and
in doing so eliminates the need for a political settlement: what settlement
can there be with gangsters and terrorists?
Yet, the armed conflict is going on de facto: for instance, take the territory
it covers (15 000 km2), its length (four years), the military force involved
(more than 80 000 persons), and the casualties (more than 3,000 killed and
more than 10 000 wounded). This scale would certainly take it out of “internal disturbances and tensions, such as riots, isolated and sporadic acts of
violence, and other acts of a similar nature.”18
This is the basis for the position of international (intergovernmental) organizations. Thus, the United Nations regards the developments in Chechnya “on the basis of the Geneva Conventions, in particular their common
Article 3 and the Additional Protocol II, and other treaties concerning international humanitarian law… reminding that the Russian Federation is a
participant of the Geneva Conventions and of the Second Additional Proto15
For more details see: A. Cherkasov, “Nature Does Not Admit Vacuum: Certain Problems of
Assessing the Legal Situation and the Law Enforcement Practice in the Area of Armed Conflict in the Chechen Republic” on the website of the “Memorial” Human Rights Center:
www.memo.ru.
16
Other euphemisms were used during the first Chechen campaign (1994—1996): “disarming
illegal armed gangs” and “restoration of constitutional order.”
17
In particular, the obligations within the framework of the OSCE.
18
“Since these are not armed conflicts” — Article 1 of the Additional Protocol II to the Geneva Conventions of August 12, 1949 that concerns the protection of the victims of the conflicts of non-international nature (adopted June 8, 1977). Hereinafter referred to as Second
Additional Protocol.
37
col thereto.”19 The Parliamentary Assembly of the Council of Europe
(PACE) denounced “the violations of international humanitarian law” by
the Chechen combatants,20 and placed the developments within the context
of humanitarian law, recognizing the latter as a side of the conflict.21
Defining Chechen fighters as “terrorists”22 instead of “separatists” (a clearly
more neutral and fair word) is used to take the representatives of the Chechen side out of the context of humanitarian law and make them objects of
a commonplace police operation.
Nominally, two systems of state power and administration function de
facto on the territory of the Chechen Republic. The sovereignty of the
Chechen Republic was unilaterally declared on November 1, 1991 by Decree of President J. Dudayev, although the international community has
not recognized the republic. The Russian federal center tried to use force
to settle the problem of Chechen separatism in 1994, and the armed conflict was unleashed. On August 31, 1996, both sides signed a peace settlement in the town of Khasavyurt, which envisaged the definition of the
statute of Chechnya within five years through negotiations (the principle
of the “postponed status” was thus adopted). On May 12, 1997, the Treaty
“On the Peace and the Principles of Relations between the Russian Federation and the Chechen Republic of Ichkeria” was signed in the Kremlin
by presidents B.Yeltsin and A. Maskhadov,23 where Articles 1, 2 stated the
obligations of both sides to “renounce forever the use and the threat of
force in the settlement of any problems” and “to build their relations in
correspondence with the generally adopted principles and norms of international law.” Since 1997, the situation with human rights in the Chechen
Republic has been persistently deteriorating. When extremist units invaded
Dagestan in August 1999, the federal power could, and had to, use force to
protect its citizens and drive back bandits and terrorists. Yet, the problem
concerning the status of the Chechen Republic could not be settled by
force: the treaties of 1996/1997 have not been denounced by the government of the Russian Federation or judged as inoperative by the Constitutional Court. The Russian Federation had no right to breach these treaties.
Federal power did not accept the very possibility of a dialogue: the problem of the status of the Chechen Republic was considered automatically
solved in favor of the Russian Federation.
Substantial limitations of human rights introduced by the Russian government in Chechnya were neither accompanied by the declaration of a state
of emergency, nor by the notification of corresponding UN structures (as
ICCPR requires it), nor by the fulfillment of the procedure of “derogation”
(as the European Convention for the Protection of Human Rights and Fundamental Freedoms requires), nor by the timely notification of relevant
European agencies. Moreover, mass violations of basic rights which cannot
be limited under any condition took place there.
19
The UN Commission on Human Rights Resolution E/CN, 4/2001/L24 of April 20, 2001.
PACE Resolution of January 25, 2001.
21
Non-governmental armed groups can be regarded as “a side” to the conflict if they “remaining under responsible command, control a part of the territory which allows them to
wage permanent and coordinated warfare and to apply the present Protocol” — Second Additional Protocol, Article 1.
22
Or “bandits,” as they were called during the first Chechen war.
23
Who was elected at general elections of January 27, 1997 conducted under international
control.
20
38
* * *
The government of the Russian Federation imposed limitations on human
rights in the area of armed conflict in the Chechen Republic and strove to
avoid parliamentary or any other control over the situation, persistently and
intentionally taking the situation in the region out of the domain of law.
As was mentioned above, Russian legislation allows for partial limitation of
constitutional rights under the conditions of the state of emergency or war
when it is properly declared.
According to Article 88 of the RF Constitution, when a real threat to the
security of people or constitutional order appears, and this threat cannot
be eliminated without the use of the state of emergency, the President declares the state of emergency on the entire territory or separate regions of
the country, immediately notifying the Federation Council (Upper House of
the Parliament) and the State Duma (Lower House of the Parliament)
about it. A presidential decree of the state of emergency must be endorsed
by the Federation Council.
In 1999, at the beginning of the armed conflict, Law #1253/1 “On the State
of Emergency” of May 17, 1991 was in force, but was not used (as it happened during the first Chechen war of 1994—1996). Although to justify the
start of the “counter-terrorist operation” the federal government cited the
conditions stated in Article 4“a” of Law #1253/1 as the basis for the introduction of the state of emergency regime,24 Law #1253/1 was not used for
pragmatic reasons. Firstly, it did not envisage the involvement of armed
forces, only allowing for the use of the Ministry of Internal Affairs troops.25
Secondly, in 1999, the executive power was not sure that the decree of a
state of emergency would be passed by the Federation Council. Thirdly, the
government did not want parliamentary control over the military activities
in the region. And fourthly, Articles 8, 17, 18 et. al. of Law #1253/1 had a
clear definition of the legal regime of the state of emergency: it demanded
exact definition of government bodies which are responsible for the fulfillment of corresponding measures; it required that the presidential decree
declaring the state of emergency contain the list and the limits of emergency
measures as well as an exhaustive list of temporary limitations of civil rights
and freedoms. The law thus established human rights guarantees and
mechanisms for their protection.26 That, of course, fettered federal enforcement structures and limited the potential abuse of power.
Federal Constitutional Law “On the State of Emergency” adopted on May
30, 2001, extended the powers of enforcement structures considerably, and
narrowed the potential for parliamentary and other control over the use of
these powers. Yet, even this new law was not used to put the state of
24
“Attempts of forced alteration of constitutional order, public disturbances, accompanied
with violence, inter-ethnic conflicts, the blockade of certain territories, the threat to the life
and security of people, or normal activity of government bodies.”
25
The use of armed forces was allowed for in the extreme situation to conduct salvation work
or to eliminate the consequences of force major situations, technogenic disasters, etc.
26
Article 27 stated that the state of emergency “cannot be the reason for the use of torture, cruel,
inhuman and degrading treatment,” Articles 28 and 33 stated that the use of force and firearms is
regulated by law and cannot be changed in the situation of the state of emergency and that
unlawful use of force by the law enforcement offices and the military or the abuse of their powers
including the violation of guarantees of civil rights will hold them responsible for it, etc.
39
emergency within a legal framework, since even these broadened margins
still set limits to the arbitrariness of enforcement structures.
Article 19 of Federal Law “On Defense” provides the potential for legal limitations of civil rights on a large territory and for long periods of time if the state
of war is declared. In accordance with Article 87 of the RF Constitution, the
state of war is introduced by the President and immediately communicated to
the Federation Council and the State Duma. The presidential decree declaring
the state of war is then to be endorsed by the Federation Council. Thus, in
this case, parliamentary control is also envisaged.
The fact that Russian executive power chose to resort to Federal Law “On
Fighting Terrorism” and introduce the regime of a “counter-terrorist operation” was determined by the desire to involve armed forces in the
armed conflict on the territory of the Chechen Republic without any parliamentary control.27
The only interpretation of the use of the Armed Forces in the Chechen
Republic provided by Russian legislation was “to use arms not for their
direct purpose,” on the basis of Article 7 of Federal Law #130, “On Fighting Terrorism,” dated July 25, 1998, which allows for the involvement of
armed forces in a “counter-terrorist operation,” as well as on the basis of
Article 10 of Federal Law “On Defense.” According to the latter, the RF
President was to act in accordance with Paragraph 1.3 of Article 5, i. e., he
was to issue a decree and have it endorsed by the Federal Council. This
document could limit civil rights and, though it was to be made public,28
was not published for a long time.29
* * *
Federal Law “On Fighting Terrorism” was criticized by the Council of
Europe for not meeting European standards due to its potential to limit
human rights.
To note, long, large-scale army operations, massive and indiscriminate
bombings and shellings, mass unsanctioned searches of houses, massive
indiscriminate detentions, placing of detainees in illegal detention facilities,
brutal treatment, torture and extrajudicial killings seem to run against the
purposes of Federal Law “On Fighting Terrorism,”30 but they are possible
due to its potential for arbitrary and extended interpretation.
Federal Law “On Fighting Terrorism” has been applied for four years on
end on 15 000 km2 of territory, although initially its purpose was to regulate local and brief uses of force where immediate reaction is needed and
there is no time to get parliament to sanction the action.
Essentially, this law originates from the “rule of a hot trail” in persecuting a
criminal when he hides himself in a building and the police cannot enter it
27
Officials spoke of the “counter-terrorist operation” as far back as in August 1999. Although
after September 11, 2001, Russian diplomacy and propaganda used this term internationally,
“any coincidence here is to be regarded as accidental.”
28
“No regulatory legal act affecting the rights, liberties or duties of the human being and
citizen may apply unless it has been published officially for general knowledge” — Paragraph
3, Article 15 of the RF Constitution.
29
This Decree, issued in 1999, was partially made public in 2002.
30
Also see the section on Article 6 of ICCPR in this report.
40
without a special warrant, thus violating habeas corpus. When the Federal
Law “On Fighting Terrorism” was discussed, human rights activists feared
that the enforcement bodies, with their extended powers and uncontrolled
activities, would inevitably commit mass violations of human rights. Arbitrary and overly broad interpretation of the law further aggravated the
situation. The law itself presupposes “the unity of place and time,” but substantial territorial expansion and long periods of application broke the link
between the cause (actions of terrorists) and the consequence (actions of enforcement structures) making the cause irrelevant. Enforcement structures
were given broad powers without any normative base to control and regulate the use of these powers. It is noteworthy that the Military Prosecutor’s
Office admits this today.
Applying Federal Law “On Fighting Terrorism” and the regime of the
“counter-terrorist operation” to limit human rights in the area of armed conflict in the Chechen Republic, the government of the Russian Federation
consciously creates a legal vacuum, which is filled with practices based on
arbitrary interpretations of laws and frequent conscious violations thereof.
This “legal experiment” resulted in mass violations of human rights.
* * *
In 2001—2002, the leadership of federal enforcement structures, both at
the level of the United Task Force in the Northern Caucasus and on the
federal level, issued a number of administrative documents geared to improve the human rights situation and the prevention of grave crimes
against individuals in the area of the conflict. There are solid grounds to
believe that the wide publicity and positive reaction of the international
community, as opposed to the urge to eliminate such crimes, were the reasons behind these regulations. During the period when these documents
were active, the situation with human rights did not improve: the number
of mop-up operations, per se, declined, but the number of “disappeared
persons” increased.
On May 24, 2001, the Commander of the United Task Force, V. Moltenskoi,
signed Order #145 “On the Measures on Improving the Activity of Local Bodies of Power, Population, Enforcement Structures of the Russian Federation
and the Efficiency of Special Measures in Towns and Villages on the Identification and Detention of Heads and Members of Bandit Gangs on the Territory
of the Chechen Republic.” Two months later, the RF Prosecutor General,
V. Ustinov, issued Order #46 “On Enhancing Surveillance over the Protection
of Civil Rights during the Checks of their Registration of Residence or Stay in
the Chechen Republic.” On March 27, 2002, the Commander of the United
Task Force issued order #80 “On Measures to Enhance the Activity of Local
Bodies of Power, of Population, Enforcement Structures of the Russian Federation Countering Violations of Law and the Responsibility of Officials for the
Violations of Law and Order During Special Operations and Address Checks
in the Inhabited Localities of the Chechen Republic.”
One cannot but uphold the provisions of Order #80:
The analysis of the service and the combat activities testifies that lawless
actions of the military of the federal forces against civil population still
take place.
Complaints of citizens and of the leaders of local bodies of power have
repeatedly launched investigations and prosecutor actions in the course
41
of which the facts of marauding, insults, cruel behavior and abuse of
power on the part of the federal military were disclosed.
Lawless actions of the military directed against civil population have extremely negative influence on the process of stabilization in the Republic,
annihilating all the efforts of the command to ensure security, law and
order, and favorable conditions for the revival of social and economic
life. Moreover, they promote anti-Russian attitude and provide the leaders of NVF [illegal armed forces] with additional opportunity to recruit
new members for bandit gangs and their collaborators.
When these facts are widely revealed, the leaders of bandit groups and
their promoters efficiently use them to defame Russian leadership, the
command of OGV [United Task Force], the military personnel involved
in the counter-terrorist operation, they provide fuel for the informational
war waged against Russia.
* * *
References to various clauses of Russian legislation cited in Paragraph 35
of the Fifth Periodical Report of the Russian Federation, evidently, do not
pertain to the actual enforcement practice.
In the situation when the state of emergency is proclaimed de facto, enforcement structures of the Russian Federation consciously, brutally and
on a massive scale violate clauses of Paragraph 2, Article 4 of ICCPR. The
scale of these violations does not make it possible to describe them in much
detail within the given report, or even in this section.
Breaches of Articles 6 (the right to life) and 7 (ban on torture) are discussed in the relevant section of this report. The activity of “squadrons of
death”31 described there also violates the clauses of Article 16 of ICCPR
since people who find themselves in secret unofficial detention facilities are
deprived of the status of subjects of law.
The corresponding section of the given report in some way discloses the violations of Article 8 of ICCPR (ban on slavery and human trafficking). Here,
we should point out that kidnappings for ransom, which became one of the
chief purposes of the launch of the “counter-terrorist operation” in the Chechen Republic, have been occurring on an even larger scale since then. The
main difference is that today people are not kidnapped by bandits and terrorists; they are kidnapped by representatives of federal forces, and the
relatives of victims can often not only free a detained person by paying a
bribe, but can also buy back the body of a killed member of their family.32
* * *
The meaning of the “counter-terrorist operation” that has been conducted
in 1999—2003 on one thousandth of the Russian territory, in the Chechen
Republic, goes far beyond its borders. The experience of persistent and
intentional removal of the situation out of the framework of relevant legal
norms was welcomed by hundreds of thousands of Russian enforcement
officers who went to the area of the armed conflict. This makes one fear a
31
Special task forces of secret services that conduct illegal detentions “forced interrogation”
(brutal torture) and extrajudicial killings which operate breaking Russian and international laws.
32
Any reference to Article 11 of ICCPR is hardly possible here since detainees have no obligations to extortionists.
42
gradual spread of “creeping emergency” and limitations of human rights
onto the whole territory of Russia.
ARTICLE 6
1. Every human being has the inherent right to life. This right shall be protected
by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may
be imposed only for the most serious crimes in accordance with the law in force at
the time of the commission of the crime and not contrary to the provisions of the
present Covenant and to the Convention on the Prevention and Punishment of
the Crime of Genocide. This penalty can only be carried out pursuant to a final
judgment rendered by a competent court.
4. Anyone sentenced to death shall have the right to seek pardon or commutation
of the sentence. Amnesty, pardon or commutation of the sentence of death may be
granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below
eighteen years of age and shall not be carried out on pregnant women.
Over the period of 1994—2003, the two Chechen campaigns — “the first”
(1994—1996) and “the second” (began in 1999) - are undoubtedly the most
significant and important events for Russia in light of the provisions of
Article 6 of ICCPR.33
Paragraph 47 of the Fifth Periodical Report of the Russian Federation reads:
In light of paragraphs 25, 28 and 30 of the comments of the Human Rights
Committee it is necessary to note that one of the main principles of the conduct of the counter-terrorist activities in the Chechen Republic is the adequacy of application of means of destruction stipulated by the acute necessity to suppress criminal activities of participants of illegal armed formations in compliance with requirements of Federal Law “On Fighting Terrorism” and other legislative statutes of the Russian Federation.34
In our opinion, this statement does not reflect reality: neither “adequacy”
nor “compliance with laws” apply in this case. This topic is also important
because of the fact that during the time they spend in the Chechen Republic, personnel from the enforcement structures of the Russian Federation, including police, share the experience of uncontrolled, unpunished,
and unrestricted by law violence, which inevitably is transferred to their
service in the rest of the Russian territory.
The overall number of civilians who have died in Chechnya is estimated at
the following level: up to 50 000 in the “first war”35 and from 10 000 to
20 000 in the “second war.”36 Note that the official data rely on estimations
made by human rights organizations since governmental structures did not
make such calculations.
33
To correctly assess the data provided below one should be aware that the area of the Chechen
Republic constitutes approximately one thousandth of the area of the Russian Federation (it measures 167 km from North to South and 108 km from East to West). The ratio of its population to
that of the entire Russian Federation is 1/250 (approximately 600 000 people).
34
Note that the translation was made from the Russian original.
35
Data provided by the “Memorial” Human Rights Center and “Sergey Kovalyov Group.”
36
Data provided by the “Memorial” Human Rights Center and the Human Rights Watch.
43
In the course of both Chechen campaigns, the Russian Federation has been
deliberately and consistently extracting the situation in the region out of the
context of norms of the national and international laws, which would have
restricted the application of force by the state and protected the rights of
the population,37 first and foremost — the right to life. Not only was neither
a state of emergency nor martial law introduced in the region, not only were
the derogation procedures provided for by ICCPR and the European Convention for the Protection of Human Rights and Fundamental Freedoms not
complied with: the Russian Federation took the events outside the context of
international humanitarian law, particularly the provisions of the common
for all Geneva Conventions Article 3 and Second Optional Protocol thereto,
defiantly repudiating the reality or very existence of an armed conflict in
Chechnya. Instead, during the “first war” one would speak of the “disarmament of bandit formations” (i. e., of a police operation somehow accompanied
by a state of emergency introduced de facto), and during the “second war”
of a “counter-terrorist operation:” Federal Law “On Fighting Terrorism” was
used formally, and interpreted expansively and arbitrarily.38 This legal nihilism turned into a rule, and has become one of the causes of massive destruction of the civilian population.
* * *
Undoubtedly, the majority of civilians who died in the Chechen Republic fell
victims to massive and indiscriminate bombardments and artillery shelling.
More than half of the victims of the “first Chechen war” — between
25 000 to 29 000 people — died in Grozny in the course of the city onslaught undertaken by federal forces in December 1994 — January 1995.39
Observers then noted that for the first time since World War II a large
European city had been turned into ruins.
During the period of active military operations in the course of the “second
war,” from autumn of 1999 through spring of 2000, the majority of casualties suffered by the civilian population (from 6 500 to 10 500 people) fell
victim to massive and indiscriminate bombardments and shelling.
The most well known episode is the shelling of Grozny’s center on September 21, 1999, with tactic missiles equipped with cluster pellet bombs —
weapons of deliberately indiscriminate action designed to destruct live
forces on large (several hectares) areas.
Federal headquarters attempted to prevent the civilian population from
leaving the combat zones. Thus, on September 25, 1999, by order of General Vladimir Shamanov, the exit of residents of the Chechen Republic into
adjacent territories of the Russian Federation was forbidden.40
No “humanitarian corridors” were provided for the exit of people; the artillery
and aviation forces bombed roads. In this respect, the most well known case is
the low-flying attack at a column of refugees on the Rostov — Baku route
37
For details, please see the section on Article 4 of ICCPR in this report.
See the section to Article 4 of ICCPR in this report.
39
For details see: Î. Orlov, À. Cherkasov, Russia — Chechnya: A Series of Mistakes and
Crimes (Moscow: “Memorial” Society — “Zvenya,” 1998, pp. 144—192).
40
The fact that 300,000 people did manage to exit into the territory of Ingushetia must be
credited to its President, R. Aushev, who ignored General Shamanov’s order.
38
44
conducted by Russian battleplanes in the vicinity of the Shaami-Yurt settlement, where dozens of people died.41 The refugees crowded onto the road following an announcement that a checkpoint on the border of Ingushetia that
had been closed one week earlier would be reopened on that day.
Note that those responsible for episodes of massive and indiscriminate application of force resulting in the death of civilians were never punished.
* * *
Deliberate attacks on the civilian population are unambiguously prohibited
by Second Optional Protocol to Geneva Conventions.42
In the course of the “second war,”43 as federal troops continued to establish
control over the territory of the Chechen Republic, several attacks against
the civilian population were undertaken that resulted in multiple civilian
deaths: in December of 1999 in the settlement of Alkhan-Yurt, in January
of 2000 in the Staropromyslovsky district of the city of Grozny,44 and in
February of 2000 in the settlement of Noviye Aldy. We are not in the position to assert whether these deliberate attacks against civilians were “excesses of the executor” or authorized by the superior commanders since
investigation of both these episodes was never completed, and those responsible were not punished.45
Likewise, nothing is known about the results of the investigation of cases
where civilians were taken hostages or used as a “live shield” during the
“first war” — in the course of the onslaught of the settlement of Semashki
in April of 1996, and that of the Grozny city hospital #9 on August 10—12,
1996.46 There is no doubt, however, that despite being episodic they were
authorized by headquarters.
In spite of the fact that active operations in the Chechen Republic were
completed in spring of 2000, the civilian population continues to die: according to official data of the Ministry of Internal Affairs, 1 132 civilians
died in 2002 alone. The majority of them were killed by representatives of
federal enforcement structures.47
41
It is expected that this case will be heard in the European of Human Rights Court shortly.
Article 13(2).
43
For details see Russia — Chechnya: A Series of Mistakes and Crimes (Moscow: “Memorial”
Society — “Zvenya,” 1998, pp. 192—204).
44
It is expected that this case will be heard in the European Court of Human Rights shortly.
45
This very circumstance is mentioned in the February 17, 2003. Report Rudolph Bindig (Legislation and Human Rights Committee of the Council of Europe, PACE Monitoring Mission) as
justification for the establishment of the International Tribunal on Northern Caucasus. The
Council of Europe Parliamentary Assembly has upheld this proposal. We are of the opinion
that Rudolph Bindig’s Report provides a comprehensive commentary on the statements contained in Paragraphs 47—48 of the Fifth Periodical Report of the RF that have to do with the
investigation of crimes committed with respect to the local population.
46
For details see Russia — Chechnya: A Series of Mistakes and Crimes (Moscow: “Memorial” Society — “Zvenya,” 1998, pp. 233—244); O. Orlov, A. Cherkasov, Behind Civilians’ Backs: Taking Hostages and Using the Civilian Population as a “Live Shield” by Russian Federal Troops in the Course
of the Armed Conflict in Chechnya (Moscow: “Memorial” Human Rights Center, 1996).
47
According to the Violence Chronicles of the “Memorial” Human Rights Center, based on a
far comprehensive monitoring, out of 559 civilians who died (436 men, 60 women, 31 under
the age of 18, the age and gender of 32 bodies not identified) 372 local residents — two thirds
— died because of the enforcement structures of the Russian Federation and those of the
Chechen Republic.
42
45
* * *
“Disappearances” of people apprehended by representatives of federal enforcement structures assumed a mass character during the “second Chechen
war.” “Disappeared” are people who had been apprehended by troops in
combat zones and taken to military unit premises. “Disappeared” are people
who had been detained in the course of “cleanings” of residential areas.
“Disappeared” are individuals for whom enforcement-men with masks and
weapons come at night in armored troop-carriers. All official authorities
deny their connection with such apprehensions. Sometimes relatives of those
who disappeared find their bodies with signs of cruel torture and violent
death. In many cases, the bodies are blown up to avoid identification. When
it is possible to track the fate of those apprehended it typically turns out
that they were taken to military premises, commandant’s offices, etc. There,
they are interrogated, kept for a while, and then killed. These structures
that operate outside the confines of law, conducting illegal detentions,
“forceful interrogations,” and extrajudicial executions, are frequently referred to as “death squadrons.”48 This name must not be misleading: in this
case one speaks not of the “excesses of the executor,” but of a comprehensive system. Due to obvious reasons, it is much more difficult to obtain evidence of the activities of “death squadrons” — this link remains a “black
box,” the existence of which nevertheless can be considered established.
Bodies of people who were detained in different places at different times are
often found in the same burial site, which means that there is a certain system of detention facilities, and that a structure coordinates the “inquest”
and determines the ultimate fate of detainees.49
According to official estimations, anywhere from 1 663 (according to data
attained from the Russian prosecution offices)50 to 2 800 or more people
(data obtained by the Chechen Republic Governmental Commission on
Missing Persons) 51 have disappeared.
* * *
The two “Chechen wars” in Russia brought about several large-scale acts
of terror accompanied by androlepsy — namely, in the city of Budyonnovsk (loacated in the Stavropol territory) on June 14, 1995, in the Dagestan Republic on January 9, 1996, and in Moscow at the Dubrovka theater
center (also known as “Nord-Ost”) on October 23, 2002.
Analyzing actions of the political leadership and enforcement structures of
the Russian Federation, one can see a total reversal of values in the hierarchy, in which lives of civilians do not come first. Application of force and
storm directives lie at the core of any response to terrorist acts. This re48
This is the definition that Paul Ossares, who was in charge of analogous activities of French
enforcement structures during the colonial war, used in his book Algeria. Special Services.
1955—1957 to describe his own work.
49
See for example: A. Politkovskaya, “Special Justice Administered by FSB: the President
Has Promised Amnesty. But for Whom?” Novaya Gazeta (April 7, 2003).
50
As of January 2003, out of 1 178 criminal cases initiated on facts of kidnapping only one
has resulted in the initiation of criminal proceeding against an employee of federal enforcement structures — this is the best illustration to the thesis about the atmosphere of impunity
reigning in the armed conflict zone in the Chechen Republic, that was so convincingly demonstrated in the aforementioned Rudolph Bindig’s Report.
51
Neither A. Kadyrov’s administration of the Chechen Republic, nor the Russian prosecution
authorities are interested in overstating the number of missing persons.
46
sults in the rejection of negotiations as an effective means: negotiations
only camouflage the preparations for a storm.
One aspect of the counter-terrorist operation in Moscow on October 23—
26, 2002, can serve as an example.
During the storm of the Dubrovka theater center in Moscow on October
26, 2002, a chemical substance of principally indiscriminate action was used
— the gaseous substance, analogous to that employed for surgery anesthesia,52 is primarily utilized to help liberate hostages in detention facilities.53
The gas immobilized the terrorists, preventing them from using any of the
numerous explosion devices they possessed. The gas affected everyone who
was in the auditorium of the theater center. However, the hostages turned
out to be much more vulnerable than the terrorists, since for more than
two days they had practically been without food, water, and motion. Due
to uneven air stirring in the large auditorium, zones of high concentration
of gas formed, and the gas affected the hostages in these zones much more
severely.
When the special task troops broke into the Dubrovka theater center auditorium and terminated the terrorists, it turns that the headquarters which
were prepared to terminate them at any cost, including the death of all
hostages,54 failed to provide for the timely evacuation of the latter once the
building was seized. Evacuation of the hostages began only 110 minutes
later, and it was not until 170 minutes after the gas had taken effect that
their delivery to hospitals began. A total of 129 hostages died, approximately three fourths of them dying before they were taken out of the
building, and one fourth during their transport to the hospital.
Note that according to Federal Law “On Fighting Terrorism,” participants
of a counter-terrorist operation are not to be held liable for any harm
caused to civilian individuals.
One may state that in all three cases the goal of the governmental forces
was not to rescue the hostages, but to terminate the terrorists. If, however,
one should regard the “second Chechen war” as a “counter-terrorist operation,” as suggested by Russian authorities, then the opinions expressed in
the first part of this section of the report chapter would have been significantly more restrictive.
* * *
Note that the protection of civilians’ lives has not been the primary goal of
the state, just as it was not an objective of the state to protect the lives of
the military and enforcement personnel. Thus, during the “first Chechen
war” Russian troops lost approximately 6 000 persons in casualties. The majority of them were killed during operations in Grozny in the winter of
52
Note that anesthetic is administered to a patient in an individual doze and under the control of an anesthesiologist.
53
Note that in this case the size of the cell is limited, and a certain concentration of gas can
be administered avoiding significant heterogeneity. Then, special task troops break in and
liberate hostages within a matter of several minutes, after which immediate provision of
medical assistance becomes possible.
54
In television reports, one could see a column of heavy construction machinery ready to
clear away ruins and debris should the theater center building be blown up.
47
1994—1995, and August of 1996.55 Those who were responsible for the mass
killing of military personnel were never held liable — in fact, they were
never even looked for. General A. Kvashnin, who planned the storm of
Grozny in the winter of 1994—1995 and commanded the federal troops, later
assumed the position of Chief of General Headquarters of the Russian Federation. General K. Pulikovsky, who commanded a group that was practically entirely annihilated during that storm, also headed the United Task
Force in the Northern Caucasus in 2000, and became a Plenipotentiary Representative for the RF President in the Far East. It is not surprising, therefore, that the lives of military personnel are not even protected during socalled “peace time” — in the year 2002 alone, according to official data, 535
servicemen of the Russian Army died outside of armed conflicts.
* * *
Problems with the observance of Article 6 of ICCPR by the Russian Federation are not limited to the issues of the Chechen conflict and those of
countering terrorism. The analysis of cases received by the Center for Assistance to International Protection demonstrates that the Russian Federation is derelict in its positive obligations regarding the securing the right to
life. A number of murders which were committed did not see proper investigation or the punishment of the perpetrators, due to administrative
dereliction.
For example, in July of 1993, D. Machavariani was discovered in Moscow
with signs of a violent death. No criminal proceedings were initiated, and
no investigation was conducted. The numerous petitions submitted to law
enforcement authorities for several years in a row by his widow proved
fruitless. The Center for Assistance to International Protection had corresponded with police and prosecution bodies for several years. Given that
these efforts proved fruitless as well, a complaint on the violation of Article 6 of ICCPR was forwarded on behalf of Nonna Machavariani to the UN
Human Rights Committee in 2001.
* * *
It is necessary to note56 that although the death penalty has not been officially abolished in the Russian Federation, there is in fact a moratorium on
its administration. Under these circumstances, however, the moratorium is
compensated not only by the widespread practice of extrajudicial executions in the zones of armed conflict in the Chechen Republic, but also by
the severe conditions of confinement of those who have been sentenced to
life in prison. Consequently, two of the organizers of the terrorist act in
Dagestan in January of 1996 — Salman Raduyev and Turpal Atgireyev —
died in prison in less than a year after their sentence had been delivered.
In fact, numerous cases of deaths in penitentiary facilities are observed in
the Russian Federation. In a number of cases this comes as a result of the
unbearable conditions of confinement and the deprivation of necessary
medical assistance to the inmates. Cases are known in which the circumstances surrounding the deaths of inmates remain uncertain, while their
55
For more details on the attitude of the state towards military personnel see: Î. Trusevich,
À. Cherkasov, Unknown Soldier of the Caucasus War (Moscow: Zvenya, 1997).
56
Omitting details of Paragraphs 40—44 of the Fifth Periodical Report of the Russian Federation.
48
bodies bore signs of physical injury. In such cases, the inquest function is
carried out by the administration of the penitentiary facility, which thus
renders investigation into the causes of death ineffective. Therefore, the
case of V. Lantsov, who died in prison and whose relatives insisted on conducting an appropriate investigation, was ignored by authorities, who
thereby failed to fulfill the obligations imposed upon them by Article 6 of
ICCPR. (As was mentioned in the section on Article 2 of ICCPR in this report, the case of Lantsov was considered by the UN Human Rights Committee in 2002, and Russia was found in violation of Article 6. The Views of
the Committee, however, have not been taken into account by the Russian
Federation as of yet, and Lantsov’s family has not yet received the due
compensation).
* * *
To sum up, one may state that in 1994—2003 the protection of the right to
life provided for under Article 6 of ICCPR has proved to be far from a
priority for the Russian Federation.
ARTICLE 757
No one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment. In particular, no one shall be subjected without his free consent to
medical or scientific experimentation.
Subjection to torture, as well as cruel and degrading treatment continues
to remain one of the most serious problems in the Russian Federation as
far as ensuring human rights is concerned.58 Evidence and complaints received by human rights organizations indicate that torture and cruel and
degrading treatment are often used by those bodies combating delinquency
and protecting public order (subdivisions of the Ministry of Internal Affairs). One of the reasons why this practice has become so widespread is
the insufficient professional training of law enforcement agency employees.
Lacking the skills that allow for the successful realization of their professional tasks without the application of excessive violence, such personnel
try to enforce the law and fight delinquency using torture and other types
of treatment and punishment forbidden by Article 7 of ICCPR. This situation is exacerbated by the fact that the programs of study used to train
law enforcement agency employees do not pay enough attention to personal immunity and the prohibition of torture and cruel and degrading
treatment.
Law enforcement staff often use violence against individuals who have
committed insignificant violations of public order, or have not committed
any violations at all.
On November 29, 2002, two residents of the Smolki settlement, N. Shevelev and A. Serov, were returning to their homes from a pub. As indicated
57
This section was prepared using the information provided by Krasnoyarsk Territorial Fund
“Legal Defense,” Moscow Helsinki Group, Nizhny Novgorod Committee against Torture, Kazan Human Rights Center, Office of the Public Fund “International Standard” in Tuimazy,
and the Center for Assistance to International Protection.
58
Detailed information about manifestations of torture and other prohibited forms of treatment is contained in the Alternative Report presented by a group of Russian nongovernmental organizations to the UN Committee against Torture in May of 2002.
49
by witnesses, Shevelev and Serov did not commit any unlawful actions.
Still, they were detained by the police, handcuffed, thrown into a police
vehicle, and taken to a sobering-up station. On the way, the police officers beat up Serov and Shevelev while they were handcuffed and could
not offer any resistance. Relatives and representatives of the settlement
administration retrieved Serov and Shevelev from the sobering-up station and immediately took them to a physician who identified that Serov
and Shevelev had been physically injured.59
Torture, cruel and degrading treatment are often used as means of crime
disclosure. Most frequently, they are used prior to the beginning of criminal proceedings within the framework of the so-called operative-investigative activity (ORD). ORD is basically the collection of information about
the criminal and the crime. Such information may not serve as evidence,
but it helps law enforcement agencies identify and obtain evidence. In the
course of the so-called “operative conversations” conducted by law enforcement agencies, the latter can subject an individual to torture in order
to obtain information about accomplices, possible traces of the crime, and
the location of property appropriated in an unlawful fashion, etc. Having
received the necessary information, law enforcement officers then conduct
investigative actions (searches, interrogations, etc.) in compliance with all
the requirements of procedural law, and eventually obtain proof for legal
proceedings.
On February 26, 2003, officers of the “Derbyshki” police station in the
city of Kazan illegally detained D. Petrov and À. Nuriyev (both underage). The police officers kept Petrov and Nuriyev at the station for almost two days, during which they were subjected to torture and beatings
as the police tried to make them provide information about a car stereo
theft.60 Head of the Security Department of the Ministry of Internal Affairs of the Tatarstan Republic, S. Chepushtanov, informed a correspondent of the “Vechernyaya Kazan” newspaper that his department had
received complaints about similar cases from 12 individuals during the
first three months of 2003 only.61
It is worth noting that operative-investigative activity is conducted secretively. Methods of such activity are never disclosed, and are practically outside court control. In addition, the criminal procedure law does not apply to
operative-investigative activity. This results in the fact that an individual,
with respect to whom such activity is undertaken, has no right to be represented by an attorney, nor does he/she have any guarantees provided for by
the RF Criminal Procedure Code62 regarding suspects and defendants.
At the same time, in practice, torture aimed at forcing testimony may also
be exercised within the area of criminal procedure regulated by the RF
Criminal Procedure Code. The primary goal of torture is to obtain a testimony from suspects and witnesses, which is later used as evidence in a
criminal court procedure. According to Paragraph 1, Article 75 of the recently adopted Criminal Procedure Code, the testimony may not be considered acceptable if it was obtained from a suspect or defendant in the absence of an attorney in the course of preliminary investigation or
59
60
61
62
Materials of the Nizhny Novgorod Committee against Torture.
Results of investigation conducted by Kazan Human Rights Center.
Materials of the Kazan Human Rights Center.
Criminal Procedure Code of the Russian Federation took effect on July 1, 2002.
50
interrogation, and was not confirmed in a court of law. However, this legal
norm is clearly insufficient to prevent torture within the framework a
criminal procedure.
Firstly, there are cases when torture has been used against witnesses who
do not have the right to be represented by an attorney, and to whom the
guarantee of Paragraph 1, Article 75 of the RF Criminal Procedure Code
does not apply.
For example, in the case charging the Azieyvs and Bakalayev with terrorism and a number of other crimes, the testimony provided by witness
Bangashev was used as core evidence. Bangashev insisted that the testimony obtained in the course of investigation had been provided by him
under torture. Bangashev petitioned to the RF Supreme Court that had
reviewed the appeal filed by the Azieyvs against the decision of the Stavropol territorial court, but the Supreme Court did not take Bangashev’s
petition into consideration.63
Secondly, as a rule, torture aimed at forcing testimony and the actual provision of testimony do not occur at the same time. Usually, police officers
torture their victims first, explaining to them what they must say at the
interrogation, and then they take them to an investigator’s or examiner’s
office where an attorney can be present. If the victim fails to provide the
required testimony at the interrogation, as a rule, he is taken out of the
investigator’s office and the torture continues.
Subjection to torture with the aim of extorting information is accounted
for by the fact that a testimony obtained under torture continues to be
accepted by courts, even if during court proceedings the defendant or witness declares that his testimony was obtained under torture.
For example, in early 2003, the Nizhnii Novgorod regional court found
N. Zakharov guilty of a crime, based on his own confession and testimony of three witnesses. In court, all three witnesses declared they had
been tortured by investigative officials and forced to testify against Zakharov who had been accused of murder. The court relied on the testimony of witnesses to find Zakharov guilty, having noted that the declarations of the witnesses made in court were false, and that they claimed
to have provided their testimony under torture “to alleviate Zakharov’s
situation.” At the same time, none of the witnesses had been earlier acquainted with Zakharov, and consequently could not be interested in relieving him of criminal liability.64
Such cases are numerous. Although courts have the right to suspend proceedings and demand that a testimony be examined in order to determine
whether it has been obtained under torture, since the Russian justice system retains its punitive traditions, it happens very rarely. In the majority
of cases registered by human rights organizations, courts never examine
defendants’ and witnesses’ statements to determine whether or not they
had been obtained under torture, and regard such declarations as attempts
to escape responsibility for the crime.
63
64
Materials of the Nizhny Novgorod Committee against Torture.
Results of investigation conducted by the Nizhny Novgorod Committee against Torture.
51
In our opinion, the practice of using torture as a means of disclosing crimes
will continue as long as the procedural law is not amended to make it a requirement to examine statements indicating forced testimony under torture.
Today, courts are free to exercise their own judgement as to the acceptability of a testimony.65 At the same time, this guarantee is clearly not sufficient since the court is not competent and has no resources to examine
the veracity of a torture claim. Such examination is delegated to prosecution authorities, which consequently must conduct it speedily, effectively,
and impartially.
Unfortunately, competent bodies of power do not undertake proper measures in investigating torture complaints and penalizing perpetrators. It was
not until March 19, 2003, that the RF State Duma passed in its first reading a draft law to amend the RF Criminal Procedure Code, rendering torture a criminal offence (Article 1171). Should the amendment be adopted
and enforced, the prevention of torture would become significantly more
effective. However, in addition to banning torture and rendering it a punishable criminal offence, the state must commit itself to conducting effective investigation of each case of torture, and punishing the offenders.
Otherwise, even the improved criminal legislation will not lead to the
eradication of torture.
According to Russian legislation, it is the bodies of prosecution that are authorized to conduct investigation of complaints of torture. However, as a
rule, they investigate such complaints in a very slow and ineffective manner.
It is important to note that the investigation itself is conducted by prosecution authorities at the district level, which are not motivated to investigate
complaints about torture and cruel treatment. The reason for their reluctance is that torture and cruel and degrading treatment are used by police
officers. According to the rules of jurisdiction, the examination and investigation of torture complaints are conducted by prosecution officials of the
same district in which the very police officers with respect to whom the
complaint is filed work. In this respect, it should be emphasized that the
district level prosecution authorities cooperate very closely with the district
level police when investigating general criminal offences. Close working
and sometimes even personal ties evolve between prosecution and police
officials operating within the confines of the same district. As a result,
prosecution officials become incapable of conducting objective investigation
of complaints about torture and cruel and degrading treatment, since they
initially side with the police officials, not the victims.
In addition, prosecution authorities of the district level do not utilize the
technical and human resources necessary to conduct the investigative activities required to disclose offences, including such types of abuse as torture and cruel and degrading treatment by officials. Therefore, prosecution
authorities delegate the conduction of such activities to district police authorities. Thus, the collection of evidence in regards to a police official accused of using torture is conducted by his fellow officers, and sometimes
even by himself.
An indicative example is the story of E. Verin, a witness in the A. Mikheyev case. During interrogation at a police station, Mikheyev was tortured with electricity. Affected by torture, Mikheyev jumped out of the
65
Articles 17, 88 of the RF Criminal Procedure Code.
52
window of the office in which he was questioned, and in which he had
confessed, in writing, to committing a kidnapping, a rape, and a murder,
none of which had taken place in reality. In the course of the investigation of circumstances surrounding this incident, Mikheyev and his representative petitioned to investigation authorities, requesting that Verin,
who had seen Mikheyev in the hospital and could testify as to whether
there had been any signs of torture by electricity on Mikheyev’s body, be
interrogated. At first, the investigator agreed to an interrogation, but
later advised that “interrogation of Verin was impossible due to Verin’s
absence at the place of residence.” It turned out later that the prosecution
authority delegated the interrogation of Verin to the very police department in which Mikheyev had been subjected to torture. Implementation
of this commission was vested with operative officer E. Oreshkin, who,
based on Mikheyev’s statement, was one of the individuals who had tortured him by electrocution. There is little surprise, therefore, that Oreshkin, who was evidently not interested in collecting evidence against himself, failed to locate Verin at his place of residence, Verin being confined
to a wheelchair and unable to leave his apartment without assistance.66
Thus, the district level prosecution authorities cannot be considered sufficiently independent to investigate complaints of torture and cruel and degrading treatment. This situation can be corrected if investigation of such
complaints is delegated to prosecution authorities at the federal subject level
(regional level), as well as security structures of the Ministry of Internal Affairs and Federal Security Service (FSB). Such proposals were made in 2001,
as is indicated in Paragraph 51 of the Fifth Periodical Report of the Russian
Federation. So far, no steps in that direction have been taken.
Currently, the regional level prosecution authorities, as a rule, do not conduct investigations of complaints of torture and cruel and degrading
treatment themselves, but do control the district level prosecution authorities. Practice shows that in the overwhelming majority of cases the prosecution authorities of the subjects of the Russian Federation cancel illegal
and unjustified resolutions from the district level prosecution authorities,
in which the latter refuse to institute or close criminal proceedings based
on torture complaints. However, following that, the cases are again forwarded to the same district prosecution authorities which, neglecting the
orders of prosecution authorities of a higher level, do not properly collect
evidence, incorrectly assess existing evidence, and violate procedural terms
once more. Then again, the regional level prosecution authority cancels another decision of the district level prosecution authority to refuse institution or closure of criminal proceedings as illegal and unjustified, and the
case is again forwarded to the district level prosecution authority. This going round in circles can repeat itself up to ten times, causing investigations
of complaints of toruture to last for years.
Despite the fact that regional level prosecution authorities admit that investigators of the district level prosecution authorities systematically make
illegal decisions, no effective organizational measures (disciplinary penalties, retraining of personnel, etc.) are taken to suppress such practices.
A separate problem is the independence of authorities responsible for the
investigation of cases of torture and cruel treatment in the army. Activi66
Investigation materials of the Nizhny Novgorod Committee against Torture.
53
ties67 referred to in the official report and undertaken by military prosecutors have played a positive, but not decisive role, since the system of inquest that currently exists in military units does not ensure the independent and impartial investigation of complaints regarding torture and cruel
and degrading treatment, and does not provide conditions for holding the
perpetrators accountable.
According to Article 40 of the RF Criminal Procedure Code, commanders
of military units are responsible for conducting inquest activities in connection with all offences committed by their subordinate personnel. Commanders have the right to undertake all necessary operative-investigative
and other measures accounted for by law in order to disclose a crime and
identify perpetrators. At the same time, commanders of military units are
not interested in disclosing crimes, since the disclosure of a crime committed on military premises is sufficient grounds for the imposition of disciplinary penalties against the commanders. On the other hand, commanders of
military units themselves can be involved in torture and cruel and degrading treatment. Thus, the mandate accounted for by the law allows commanders to effectively conceal offences committed in their units. It is impossible to solve this problem without modifying the existing legislation,
and without depriving unit commanders of the right to initiate criminal
proceedings, collect evidence, and conduct operative activities.
In addition, regardless of the context in which torture and cruel and degrading treatment are used (in the army, during investigation and inquest procedures at law enforcement agencies, etc.), there is a problem in the protection
from persecution of those individuals that file complaints about such type of
actions, as well as witnesses that testify against officials. The new Criminal
Procedure Code does not account for adequate measures of protection for
those who suffered criminal offences, as well as witnesses and their family
members. As a result, individuals who have petitioned to prosecution authorities claiming they were tortured, as well as witnesses and their relatives, are subjected to pressure, which in a number of cases amounts to the
application of violence. Prisoners who complain about torture and cruel
treatment exercised by the administration of penitentiary facilities find
themselves in an especially hard situation, since during the period of the
examination and investigation of the allegations they are not transferred to a
location where they will not be subjected to pressure and persecution from
the officials whose actions they actually complained about.
Given that there is no protection system for complainants and witnesses in
cases of torture, the investigation of such violations is not effective, since
they are frequently forced to give up their statements and testimony under the threat of persecution. In addition, the threat of persecution compels many victims of torture and cruel and degrading treatment to refrain
from filing complaints with authorities, which only adds to the impunity of
torture.
ARTICLE 8
The implementation of Article 8 of ICCPR is dealt with in the Fifth Periodical Report of the Russian Federation on pages 55 through 58. This sec67
Paragraphs 52, 53, 54 of the Fifth Periodical Report of the Russian Federation.
54
tion reports the measures taken by the government to fight against the
sexual exploitation and trade of women and children, and against the human trafficking implicated therein. Indeed, in 2000—2002, the government
of the Russian Federation started to pay attention to the issue of trafficking with respect to women and children. The fact that this issue has been
recognized as a problem should certainly be regarded as progress compared to the current attitude towards other forms of slavery and human
trafficking.
* * *
The problems of slavery, human trafficking and forced labor were very
acute in the Russian Federation during the period of 1994—2003.
The overall situation in this area can be characterized as follows. The exploitation of forced labor, the kind of which was in place in the Soviet era,
is absent in modern Russia. However, there have been numerous instances
of criminal use of forced labor, abduction for the purpose of receiving ransom, and of the use of “home slaves.” The latter form of exploitation has
been widely used in the RF republics of the North Caucasus (especially in
the Chechen Republic). The most vulnerable group of the population, with
regard to slavery-related practices, are conscripts, who are being forced by
their commanding officers to work for them, sent to work for commercial
organizations, or even sold into slavery. The government has not taken appropriate measures to put an end to this situation.
* * *
1. No one shall be held in slavery; slavery and the slave-trade in all their forms
shall be prohibited.
2. No one shall be held in servitude.
Since 1997, there have been numerous widely publicized cases of abduction
for ransom in the Chechen Republic and the adjacent republics of the
North Caucasus.68 In 1999, they were referred to as one of the main justifications for starting the “antiterrorist operation,” a military campaign that
was aimed to eliminate separatism in the Chechen Republic.
Once the territory of Chechnya was taken under control by the enforcement structures of the Russian Federation, the business of abducting people and returning them for ransom, on a scale comparable with the previous situation, was taken over by individual officers of the RF enforcement
structures.
Finally, there is an ongoing influx of reports on the forced exploitation of
illegal migrant workers (primarily in construction), and on the exploitation
of women, children, disabled persons, individuals without permanent residential registration, and homeless people as well. Several instances of human trafficking have also been reported in this context.
However, both the general public and the authorities consider these problems to be of secondary importance, and unrelated to each other. There is
no generally acceptable list of these issues, and no comprehensive research
68
The fact that the abducted people were widely used as “home slaves” is not well known
outside of Russia. However, very few people in Russia know that the majority of those abducted for ransom are ethnic Chechens or residents of the Chechen Republic.
55
has been done so far in this area69. Many offences of this kind have simply
been ignored by the law enforcement authorities (despite repeated appeals
by criminologists to include them in general crime statistics), while many
such offences have not even been defined in criminal law. As of now, Russian authorities have taken only the first steps in this direction. In 2002, a
bill was introduced in the State Duma to amend the RF Criminal Code
with an article entitled “Employment of Forced Labor,” which would provide up to eight years imprisonment for this offence.
According to media reports, between 1997 and 1999, the number of abducted people in the regions of the North Caucasus was running in the
thousands.
The federal enforcement structures responsible for freeing the hostages
are apparently not up to this task.70 It was only in autumn of 1998 that the
task of freeing hostages was taken up in earnest by the Department
Against Organized Crime (RUBOP).71 After this, Ministry of Internal Affairs unit started tackling the problem of hostage-taking, it turned out that
in many cases they were more likely to get involved in the trade of human
beings themselves than they were to prevent such criminal activities.
There have been reports that some of the officers of the North Caucasus
RUBOP asked the relatives of the abducted people to collect the allegedly
required ransom money, only to appropriate this money later. In 1999, it
became known in the Dagestan Republic that the bulk of the money allocated for the purpose of freeing hostages in Chechnya was misappropriated. These funds were divided among themselves by the Dagestan enforcement structure officials acting as intermediaries.72
Right after the beginning of the 1999 “counter-terrorist operation,” detentions on the territory of Chechnya acquired a large-scale and indiscriminate character. This had two inevitable consequences: torture and corruption. Evidence obtained by torture and/or other cruel treatment during the
interrogation of detainees often became the only available proof of their
guilt, while the absence of any other evidence allowed the officers of the
federal enforcement structures to make arbitrary decisions, ranging from
criminal prosecution to the complete release of detainees. Release for ransom became an established practice almost immediately since the winter of
2000, and has not been eliminated in the subsequent three years. The intermediaries between the federal enforcement structures and relatives of
the detained people are often also the same individuals who were involved
as such in the trade of human beings in 1997—1999.
The criminalization of the enforcement structures’ activities in the North
Caucasus did not come as a surprise — it can be regarded as a natural
consequence of the deliberate policy aimed at pushing the situation outside
69
This issue has been reviewed in the Section “Freedom of Slavery, Ban on Forced and Compulsory Labor” in Human Rights in Russian Regions — 2001” (Moscow: Moscow Helsinki
Group, 2002, pp. 36—50).
70
In the two years (autumn 1996 — autumn 1998) 140 hostages have been released primarily
due to the activities of major V. Izmaylov; after his discharge from the army he continued to
be engaged in the release of hostages as a journalist of the Novaya Gazeta.
71
In a brief period of time, they managed to free over 100 hostages, due, primarily, to the
information received from Izmaylov.
72
This information was received from the Polish Embassy officials in charge of locating two
Polish women-scientists abducted in Dagestan.
56
of the legal context,73 as vividly displayed by the evolution of the situation
in the North Caucasus.74
Until 1994, such a criminal offence as abduction for ransom was not among
the most frequent offences in the Chechen Republic. In the course of the
“first Chechen war” the trend was reversed, primarily as a result of attempts by the federal side of the conflict to take the situation out of the
context of national and international law.75
The qualification of the events in the Chechen Republic as a process of
“disarming illegally armed groups” rather than as an armed conflict
(internal or even international), and the refusal to view the conflict
within the context of the Geneva Conventions and Additional Protocols
thereto, allowed the RF to disregard the Chechen side as a legitimate
partner for possible dialogue. However, such an approach made it
impossible to require the opposite side to respect the POW status of the
captured servicemen and civil personnel. The federal side refrained from
even using the term POW in its negotiations with the Chechen side,
referring to them instead as “hostages” to be bought out or exchanged
for captured “outlaws.”
Thus, the federal side handed over to the opposite side a list of Chechens
apprehended on various charges unrelated to the armed conflict as of July
5, 1996, which was put together from the database of the Main Information Center of the RF Ministry of Internal Affairs. The reaction to this
move was quite predictable: “They try to exchange POWs for criminals.”
However, the list was made public, and that triggered a succession of hostage-taking with demands to exchange them for detained criminals.
Use of hostages as a “human shield” during the armed conflict76 (see more
on this issue in the corresponding section of this report) constitutes a gross
violation of Article 8 of ICCPR.
Similar to many other issues (i. e., torture, etc), the situation of the trade of
people in the Chechen Republic should be viewed as an extreme manifestation of the trends and practices existing all over the country.
The government policies implemented in the course of several years created conditions that actually promoted the trade in people and criminal
employment of slave and forced labor against a background of general impairment in the situation in the country. The introduction of stricter passport control and the regulation of migration greatly impairs the life of illegal migrant workers, whose passports are confiscated, as a rule, by their
so-called “employers.”77
Numerous releases of “house slaves” in Chechnya and Ingushetia are primarily owed to the operation of federal enforcement structures in that re73
For more detail, see the section on Article 4 of ICCPR in this report.
For more detail on the events of 1994—1999, see the report by A. Cherkasov, Hostage Taking in the Caucasus in the Late 90s: Historical Roots at www.memo.ru.
75
For more detail, see the section on Article 4 of ICCPR in this report.
76
Also, see the section on Article 6 of ICCPR in this report. Also, O.Orlov, A. Cherkasov, Russia-Chechnya: the Chain of Mistakes and Crimes, (Moscow: Memorial, Zvenya, 1998, pp. 233—
244); and O. Orlov, A. Ñherkasov, Hiding Behind Innocent Civilians: Hostage Taking and Use
of Civilian Population as a “Human Shield” by federal forces of Russia in the Course of the
Military Conflict in Chechnya (Moscow: Memorial, 1996).
77
See the sections on Articles 2 and 12 of ICCPR in this report.
74
57
gion. Forced labor is being widely employed in several adjacent regions,
but since there is no ongoing “counter-terrorist operation” nothing is being
done about it. There are no programs in place aimed at the social rehabilitation and adaptation of the former “slaves” who very often choose to return to their former masters.
As a result, the overall environment has a very negative impact on the
problem of banning slavery and the trade in people, an issue that requires
enhanced attention. However, the overall situation is not hopeless. In the
international arena, the Russian Federation has been forced to at least recognize the existence of the problem, which has been reflected on pages
55—58 of the Fifth Periodical Report of the Russian Federation.
* * *
3. (a) No one shall be required to perform forced or compulsory labour.
(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment
with hard labour may be imposed as a punishment for a crime, the performance of
hard labour in pursuance of a sentence to such punishment by a competent court.
(c) For the purpose of this paragraph the term “forced or compulsory labour”
shall not include.
(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of
a court, or of a person during conditional release from such detention.
(ii) Any service of a military character and, in countries where conscientious
objection is recognized, any national service required by law of conscientious
objectors.
(iii) Any service exacted in cases of emergency or calamity threatening the
life or well-being of the community.
(iv) Any work or service which forms part of normal civil obligations.
The Fifth Periodical Report of the Russian Federation does not deal specifically with the issue of compulsion to labor. However, the employment of
conscripts as compulsory laborers outside of their service duty still remains
a common practice.
Committees of Soldiers’ Mothers, other human rights organizations, and the
mass media have documented numerous cases of this kind. Nevertheless, the
situation remains unchanged and the exploitation of this kind continues,
ranging in extreme cases to the actual sale of conscripts into servitude to
private individuals. The Ministry of Defense and other enforcement structures to which conscripts are assigned to serve, as well as the Chief Military
Prosecutor’s Office, do not take any practical steps to resolve the issue.
An anonymous survey conducted in 2000 in the city of Samara among 23
conscripts by a human rights foundation “Samara’s Choice — 21st Century” revealed that two thirds of the surveyed servicemen had been involved in work that did not directly relate to their duties, or they were
familiar with such cases.
The most common form of exploitation is the assignment of soldiers by
their commanding officers to construction or renovation projects involving
the homes or apartments belonging to the officers or their relatives, as
well as using soldiers as helping hands on farms.
58
Privates Pavlov and Ovsiyenko from military unit #29483 in Vladikavkaz
(in the Republic of North Osetia—Alania) were taken by their warrant
officer Djusovev to the village of Sunj in the Prigorodny district, where
they worked on the construction of a house belonging to Djusovev’s
brother. On May 13, 2002, a rainstorm accompanied by gusty wind
caused a rupture of the power supply cable. Trying to mend the rupture,
privates Pavlov and Ovsiyenko were injured by an electrical discharge.
Pavlov died on the way to hospital. Ovsiyenko, who was injured during
the fall, is alive.78
In December of 2001, another anonymous survey was conducted among 23
soldiers. Eight of them claimed that they had participated in unauthorized
work. Nine servicemen stated that they are aware of cases where soldiers
would be employed in projects outside of their duty responsibilities (construction, driving a vehicle).
The military prosecutor’s office normally pays attention only to the most
outrageous cases, involving death or severe injuries of servicemen.
On July 2, 2002, eight soldiers from an air defense rocket artillery battalion
stationed at the village of Funkovo (Moscow region) were sent by their battalion commander to dig a ditch at his country house. A landslide occurred
and three enlisted men were buried under the earth. Two of them were
taken to hospital with various injuries, and the third one, a 20-year old private D. Kiselev, died before the arrival of the emergency crew. The battalion
commander was suspended from his duties by the order of the commander
of the Moscow Airforce and Air Defense military district, while the prosecutor’s office opened a criminal investigation.79
Another widespread form of exploitation of enlisted personnel labor is the
assignment of servicemen to work for private businesses.
Sergei K. was recruited to the army from the Kurgan region in the spring
of 2002. Six months later he went AWOL from his unit, which stationed in
the Stavropol region. In his statement written to the Committee of Soldiers’ Mothers he claimed that for a period of two months he had to herd
cows, and for the next four months, together with 20 other servicemen, he
had to work as a construction worker for a private construction company
building a road. All the wages earned by the servicemen were taken by
the commander of the unit.80
Some of the regions are more outstanding then others in terms of the
spread of such practices. According to Colonel A. Tebloyev, Military Prosecutor of the Republic of North Osetia — Alania, “Exploitation of servicemen as a cheap labor force has taken catastrophic dimensions in our republic.”81
The Council of Servicemen’s Parents of the Belgorod region reports that
personnel enlisted in military unit #93203 (village Sputnik, Republic North
78
“Everything for Sale,” North Osetia (#116, 2002).
Y. Tishchenko, “A Soldier Died at a Farm,” Vremya Novostey (#118, 2002).
80
Regional Report “Human Rights Situation in the Kurgan Region — 2002,” drafted within
the countrywide monitoring effort coordinated by the Moscow Helsinki Group. Available at
www.mhg.ru.
81
“Everything for Sale,” North Osetia (#116, 2002).
79
59
Osetia — Alania) are assigned to work for the villagers. The going price is
100 roubles per soldier per day.82
On July 29, 1999, several months before the end of his service, junior sergeant M. Fedorov from the now disbanded army regiment #503 was
“rented out” to a local businessman. However, after the completion of his
job, Fedorov was not returned to his unit, but was taken to the Dagestan
Republic. He managed to return home only in November of 2002. In the
meantime, he was put on the deserters’ list by the prosecutor’s office of
the garrison. According to Fedorov, exploitation of enlisted personnel as
forced labor is a common practice in the North Caucasus.83
ARTICLE 9
1. Everyone has the right to liberty and security of person. No one shall be subjected
to arbitrary arrest or detention. No one shall be deprived of his liberty except on
such grounds and in accordance with such procedures as are established by law.
As one can see from Paragraph 1, Article 9 of ICCPR, it is adherence to the
established national legislation governing the relevant liberty-deprivation
measures that acts as the principal requirement for the legality of either
arrest or detention.
In connection with this, it ought to be pointed out that in the Russian Federation (particularly over the reported period) cases of individuals being
arrested or detained arbitrarily occur rather commonly.
In the sections below the more pronounced violations of the domestic
criminal procedure legislation will be covered, including those violations
related to the application of the newly adopted (July 1, 2002) RF Criminal
Procedure Code, which relates to matters involving arrest and detention.
Understandably, these violations have come as a result of the systemic deficiencies seen in Russian law that inevitably lead to the breach of the requirements of Article 9 of ICCPR.
* * *
The applicable law carries no requirement to record the actual time an individual is detained. Thus, in practice, the actual detention and custody
record times can be separated by a few hours or even a few days.
I. The Center for Assistance to International Protection has knowledge of a
large number of cases where such violations have occurred, which enables
one to be able to conclude that these unlawful activities can be characterized as common practice. By way of example, in the R. Belevitsky case (Nikulinsky court, Moscow) the suspect was detained on October 11, 2000,
while the relevant detention protocol was made one day later (October 12,
2000), which ran counter to the provisions of Article 122 of the then-active
82
Regional Report “Human Rights Situation in the Belgorod Region — 2002,” drafted within
the countrywide monitoring effort coordinated by the Moscow Helsinki Group. Available at
www.mhg.ru.
83
G. Ryavkin, “Two Soldiers, Two Slaves,” Izvestia (#210, 2002).
60
old RSFSR Criminal Procedure Code. When Belevitsky was unlawfully detained, he gave testimony and perjured himself in the process.84
Particularly noteworthy is the fact that, as they suffer unlawful detentions, the detainees are often manhandled and incriminate themselves under assorted pressures. When such facts become known to the practicing
judges, they normally remain unresponsive.
Following the inaction of the new RF Criminal Procedure Code, such cases
continued to be reported by human rights monitors from different Russian
regions. This, in particular, is due to the fact that Article 92 of the RF
Criminal Procedure Code does not carry any provision related to how soon
the detention protocol should be made after the actual detention of a person. The law decrees that the detention protocol should be made within
three hours of the delivery of the suspect to the relevant investigator’s or
prosecutor’s office, rather after he has actually been detained. So, until the
suspect has been delivered to the said officials, he/she can legally be in
detention for an indefinite stretch of time. The current wording of the applicable provisions holds no mention of the actual detention time. This can
be confirmed by Annex #12 to the RF Criminal Procedure Code, the wording of which provides for the time the detention protocol should be made
and for the time of detention by an investigator (inquirer), rather than by
a regular policeman. At the same time, detentions, as a rule, are carried
out not by the investigator (inquirer) in his/her office, but by street patrol
policemen, operative group policemen, etc.
II. Detention protocol generally holds no mention of the grounds for detention, the matter being stipulated under Article 91 of the RF Criminal Procedure Code. Oftentimes, a person can be detained with no grounds whatsoever: a policeman might deem the looks or ways of some members of
concrete ethnic groups (for example, Chechens) suspect. The detention can be
performed either on the street or on residential, public, or business premises.
It often happens that the detention protocol includes the following motivation for the detention of a person: “can flee,” the grounds for which fail to
be stipulated by Article 91 of the RF Criminal Procedure Code. Notably,
this sort of concern generally remains unsubstantiated.
III. The ruling on the application of restriction measures carries no grounds
stipulated by the provisions of Article 97 of the RF Criminal Procedure
Code, pursuant to the applicable international requirements and standards
that hold an exhaustive list of motivations for the application of that or
other measures of restriction. Namely, there must be sufficient grounds to
believe that the accused:
•
•
•
can escape from the inquiry, investigation, or court;
can continue being engaged in criminal activity;
can hamper the proceedings of a criminal case (by way of intimidating
the witnesses, destroying the evidence, etc.).
According to lawyers employed by the Center for Assistance to International Protection, it is common practice for investigators and courts to fail
to mention a single legally prescribed motivation for the application of that
84
Here and onwards all observations are based on the findings secured by the Center for
Assistance to International Protection. Also see more specifics about this case in the comments
on Article 14 ICCPR.
61
or other restriction measures, instead merely referring to the gravity of
the charge being filed. This is particularly intolerable when custody is chosen as the appropriate measure of restriction.
By way of example, in the T. Miminoshvili’s case (2001—2003) different
courts had repeatedly ruled to keep the suspect in custody, because he was
charged with committing a very grave crime and extra time was needed to
work with the evidence.
Yet another case ending with such a decision was last passed following the
adoption of the new RF Criminal Procedure Code. Obviously, this relates to
the fact that the new judicial procedure for the application of restriction
measures has done little to change the long-lasting punitive strategies, and
has failed to bar the use of unlawful and ungrounded detentions or arrests.
IV. Detentions have often been extended without any regard for due requirements. Whenever such moves are made, the courts are required to
proceed in compliance with the provisions of Article 97 of the RF Criminal
Procedure Code stipulating the grounds for restriction measures. Notably,
the gravity of the charge being filed can be taken into account as one of
the factors (pursuant to Article 99 of the RF Criminal Procedure Code).
However, the conditio sine qua non for application (or extension) of the
chosen restriction measure should be the availability of one of the relevant
grounds or motivations listed under Article 97 of the RF Criminal Procedure Code.
In order to make any definitive conclusions about the said legal requirement being breached in the country, or about how human rights issues are
actually treated in Russia, it would suffice to refer to the Fifth Periodical
Report of the Russian Federation where Paragraph 66 reads as follows:
A decision to extend the given detention can only be made by a district
court judge, unless there are sufficient grounds to alter or lift the pertinent measure of restriction, for any length of time within six months.
This fragment clearly shows that Russian courts primarily address the
question of absence of sufficient grounds for altering the relevant punitive
measure, rather than considering the problem of the availability of legally
prescribed grounds for extending the given detention, thereby ignoring
Paragraph 3, Article 9 of ICCPR that features the principle of “pre-trial
release presumption.”
The Russian judicial system has yet to embrace that guideline. To provide
another example, in the case of V. Shukhardin and other cases, while ruling on extending detentions for the accused prisoners that had already
been in pre-trial custody for over four years, the Omsk regional court determined the following:
In view of the fact that the current detention terms for Shukhardin,
Gorfina, Matiush and Gurin expire April 1, 2003, they shall be held in
continued custody for another three months through July 1, 2003.
V. There is no procedural act prescribing the application of detention
measures between the time a given case is filed and the time a relevant
court has scheduled the pertinent hearing. This circumstance serves to
produce situations where the given pre-trial arrest sanction applied in the
course of pre-trial investigation has already expired and no new measure
62
has yet been applied. A detainee can find himself/herself facing such conditions for a stretch of time ranging from a few days to several weeks.
By way of example, in the R. Belevitsky case the relevant prosecutorial
sanction expired December 12, 2000, while the case materials were delivered to the court January 4, 2001, with the judicial sanction for R. Belevitsky to be kept in continued custody issued as late as January 11, 2001, by
the Moscow-based Nikulinsky court. Notably, until that rather late date no
court decision on the application of any punitive measure in regard of
Belevitsky had been passed.85
Similar developments occurred across the entire spectrum of cases prosecuted through July 1, 2002 (at which time the old Criminal Procedure
Code was still active), the practice generally being in line with the applicable legislation.
Following the enactment of the new RF Criminal Procedure Code, things
have remained unchanged for the most part in this particular area.
In the T. Miminoshvili case at the close of 2002, with the new Criminal
Procedure Code already being in operation, the judicial sanction for the
accused to be kept in custody in the course of early investigative efforts
had expired by the time the case materials were filed by the court. It was
only 11 days later that the court ruled to “have the restriction measure
extended” while providing no motivation to that effect.
* * *
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons
for his arrest and shall be promptly informed of any charges against him.
Russian investigators have maintained the practice of keeping the detainees unaware of the reasons for their arrests or charges leveled against
them. Evidently, this has to do directly with the fact that no arrest report
is filed immediately following the application of a detention measure. In
the R. Belevitsky case it was fully confirmed that following his detention
on October 11, 2000, he was held in custody for one day with no charge
brought against him, particularly given that he was never officially passed
as a detainee because no detention protocol was filed.86
What is more, as they go about collecting the requisite body of evidence,
Russian investigators like to keep the detainees unaware of any charges
that could be leveled against them in court. Notably, T. Miminoshvili was
accused in absentia, and was taken off the “wanted” list. However, following his detention on April 7, 2002, it was only four days later that he was
arraigned.
It often happens that once investigative efforts are completed, new charges
are raised, and it is only then that the detainee comes to know the true
reason for his/her arrest. Given the circumstances, throughout the investigation period the prisoner naively builds up his defense against the expected charge, only to find out in court that he is accused of committing a
much graver crime. For example, in the case of minor S. Akoulinin (the
relevant sentence being passed in 2001), in the investigation stage the said
85
86
Also, see more specifics on the case in the section on Article 14 of ICCPR in this report
Ibid.
63
young man had been steadily accused of carjacking with no intention of
making a theft. However, in the end he was charged with committing car
theft, a much more grave felony.87
The new Criminal Procedure Code fails to safeguard the rights provided
under Paragraph 2, Article 9 of ICCPR.
The new Criminal Procedure Code allows for a person to be held in custody for two days (Article 94) with no charge being raised. Moreover, a
judge can add another detention of up to three days prior to filing a
charge. Clearly, a five-day detention with no raised charge appears to be
too lengthy, and thereby running counter to Article 22.2 of the RF Constitution and Article 9.2 of ICCPR.
Notably, Article 100 of the RF Criminal Procedure Code serves to aggravate the plight of detainees in Russia. It allows for the suspect to go for up
to ten days with no charge brought against him following his/her detention or official application of a relevant restriction measure.
Obviously, this procedure is at odds with the requirements for “promptness.”
* * *
3. Anyone arrested or detained on a criminal charge shall be brought promptly
before a judge or other officer authorized by law to exercise judicial power, and
shall be entitled to trial within a reasonable time or to release. It shall not be the
general rule that persons awaiting trial shall be detained in custody, but release
may be subject to guarantees to appear for trial, at any other stage of the judicial
proceedings, and, should occasion arise, for execution of the judgment.
1. Updating the applicable legislation to improve the procedure
for applying measures of restriction in the form of detentions
has not produced a notable shift in the practice of making arrests
Throughout the period following the Fourth Periodical Report of the Russian Federation and ending July 1, 2002, all arrests had been performed
based on the sanction of prosecutors of different seniority. Notably, this
practice was maintained despite its violation of Paragraph 3, Article 9
ICCPR as well as its violation of the RF Constitution.
Starting July 1, 2002, arrests have to be sanctioned by the court, following
the relevant petition submitted and endorsed by the prosecutor. However,
in all actuality, no meaningful improvements have come to pass, which can
be explained by the fact that courts are always ready to sanction an arrest
while overlooking the fact that the police are breaking the established detention rules, as well as often disregarding the absence of grounds for application of detention.
Relative reductions in the number of arrests directly following the enactment of the new Criminal Procedure Code have served to produce a newly
established procedure for the application of detentions in order to avoid
excessive arrests that is seemingly functional and effective. To specify, the
drop in the total number of arrests came to pass in the initial stage immediately following the introduction of the newly established procedure for
87
Also, see more specifics on the case in the section on Article 14 of ICCPR in this report.
64
the application of detentions, at which time the judges were temporarily
poorly equipped to handle this legal novelty. As time went by, the numbers of arrests started to rise on a steady basis, and now there are solid
grounds to predict that in the near future the old level of statistics for detentions will be restored. Admittedly, the poor performance of Article 108
of the RF Criminal Procedure Code cannot be noticed by the public yet,
given that detention-related matters are generally addressed in closed
court sessions.
Despite the fact that these issues are now decided by the court, their consideration remains perfunctory (just like in the past), with no substantive
particulars or circumstances ever receiving an in-depth inspection.
By way of example, on April 11, 2003, the police detained the suspect
S. Skriabin who was then unlawfully held in custody for nearly half a day
(at night on April 11—12), with no detention protocol being filed. What is
more, he was badly beaten up by the police (the defense holding convincing medical evidence to that effect). However, when Skriabin’s defense
attorney made a statement of all these facts before the court considering
the question of Skriabin’s detention and demanded that his client be released, Judge E. Ivanova of the Tagansky inter-municipal district court,
Moscow, not only refused to meet the request, but even had the April 12,
2002 court ruling completed and passed with no mention of Skriabin being
manhandled by the police and unlawfully held in custody. This happened
despite the fact that all those violations had been duly mentioned by the
defense in the relevant written application and described in detail by Skriabin. As a matter of fact, this is a fine example of a judge helping the police cover up their criminal acts.
In the meantime, as they proceeded to introduce the new judicial procedure for the application of detentions, Russian lawmakers maintained that
the courts and judges would be independent operators, capable of reliably
putting in check the long-lasting arbitrary moves on the part of the enforcement structures. Alas, the objective (as can be clearly seen) still remains to be achieved. Given the prevailing scene, the latest legal novelties
(particularly the newly adopted Criminal Procedure Code) have not yet
produced the desired (and seemingly evident) positive shifts.
2. Burden of proof on the issues of the accused being held in custody
For the issue of the application of custody as a measure of restriction to be
decided in the positive, the prosecution should not necessarily provide absolutely convincing arguments to substantiate the need for such a measure.
As a rule, the state-run prosecution would confine himself to making a
statement to the effect that the given detainee is accused of committing a
grave crime warranting a prison sentence. Notwithstanding the adoption of
the new RF Criminal Procedure Code, Russian prosecutors continue to
forgo in their statements the legally prescribed presentations of the circumstances that could warrant an arrest (Article 91 of the Criminal Procedure Code). This dimension has already been covered in detail in the comments on Paragraph 1, Article 8 of ICCPR.
65
3. Can the currently applied regular pre-trial detention term
for the accused be regarded as reasonable?
Paragraph 1, Article 109 of the RF Criminal Procedure Code reads that “the
term of detention for the accused can not exceed two months.” However, it
can last beyond six, twelve, and even up to eighteen months pursuant to
Article 109 of the RF Criminal Procedure Code (Paragraphs 2 and 3) with
regard to individuals accused of committing grave and very grave crimes.
The very fact that the accused can be kept in a pre-trial detention center
for months or even years on end can only show that either Russia is overburdened with highly complex criminal cases, or that the government pursues the wrong set of judicial policies. The latter speculation appears to be
more to the point, because it can very much be inferred from the case of
R. Belevitsky who had to spend two years (2000—2002) in two Moscowbased pre-trial detention centers.88
The so-called spy cases that had been covered in the reports of Amnesty
International in 2001 and 2002 deserve special mention. Those are the cases
of G. Pasko, V. Moiseev, I. Sutyagin, and V. Danilov. In each of these cases,
the pre-trial detention terms were overly lengthy and unreasonable.
I. Sutiagin (arrested in 1999) continues to be held in custody (for nearly
three and a half years now), with the trial still pending. Following the initial court hearing of the case, no verdict was passed. The case was dispatched for further investigation on account of the defendant’ rights being
violated. Importantly, his principal right. At the same time, his most important right — the right to liberty — was not restored by the court.
As it looked into the V. Moiseev case in July 2000, the RF Supreme Court
overruled the previous court’s decision of lack of convincing evidence for
Moiseev’s guilt, and sent the matter for new judicial consideration. However, the Supreme Court did not order to release Moiseev from custody,
and he had to suffer the conditions of confinement for another year while
waiting for a new court ruling.89
In all of these “spy cases,” just like in the Kalashnikov v. Russia case, in which
the European Court of Human Rights ruled in July 2001 that any reasonable
term of pre-trial detention had been exceeded, there are some complex particulars that nonetheless fail to justify such lengthy periods of detention.
On the other hand, should one take a closer look at the R. Belevitsky case, one
could hardly find any complex circumstances or special gravity of the offense
committed. Notwithstanding, the young man had to spend a year and a half
(detained October 11, 2000 — sentenced in April 2002) in confinement.90
In all of the aforementioned cases there had been lengthy interim periods
when the courts would not hold the relevant hearings for a range of reasons, such as lack of transportation to bring the defendants to the courtroom, no-show of the witnesses for the prosecution, judges being temporarily disabled or overburdened with too many pressing matters, absence
of lay-jurors, or even judges being on vacation. In addition, despite the
hearings being repeatedly rescheduled for valid or not-so-valid reasons, all
88
89
90
Also see more specifics about the case in the section on Article 14 of ICCPR in this report.
Ibid.
Ibid.
66
applications made by the defense to have the defendants released, pursuant to the generally accepted rule, have been left unsatisfied, just like the
relevant causational appeals.
* * *
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings before a court, in order that court may decide without delay on
the lawfulness of his detention and order his release if the detention is not lawful.
Within the reporting period, this particular right had been regulated in
Russia through application of Article 2201 and Article 2202 from the old
RSFSR Criminal Procedure Code. Notably, the newly adopted RF Criminal
Procedure Code carries no special provision dedicated to this right. Many
lawyers view this as a generally positive and democratic change, as Article
125 of the new RF Criminal Procedure Code endows the applicant with
wide possibilities to appeal against any violation committed within the
frames of the investigation.
Also, Article 220 of the old RSFSR Criminal Procedure Code provided
shorter timelines to tackle this kind of complaint (within three days) —
now, with the new RF Criminal Procedure Code in place, Article 125 allows for similar appeals to be considered within a longer period, i. e., five
days. However, it should be emphasized that the old three-day timeline
was nearly never been observed by the courts, with the prisoners waiting
for long days, weeks, and even months for their cases to be tried.
One prime example of this can be found in the “Smirnova v. Russian Federation case, which the UN Human Rights Committee found admissible in
1998.
* * *
5. Anyone who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation.
The applicable law (Article 1070 of the RF Civil Code) provides for the compensation of damages made payable to the person who has been unlawfully
detained by the police, the fact having to be confirmed by a court of law.
In reality, it is quite a great challenge to have this right implemented, because it is very rare for a court of law to confirm that a given person has
been unlawfully kept in detention. What is more, even with the relevant
court order being secured, it would still take tremendous effort to be compensated for the damages sustained.
To provide yet another example, the sentence regarding G. Mikadze was
altered by the Moscow city court on April 5, 2001, yet it was altered in
such a manner that by the time the judgment was passed G. Mikadze had
already spent a few months longer in detention than was stipulated by the
updated sentence. All attempts to be compensated for the damages sustained merely led to his being stripped of all civil rights and in essence deprived of Russian citizenship.
67
ARTICLE 1091
1. All persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person.
2. (a) Accused persons shall, save in exceptional circumstances, be segregated from
convicted persons and shall be subject to separate treatment appropriate to their
status as unconvicted persons;
(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social
rehabilitation. Juvenile offenders shall be segregated from adults and be accorded
treatment appropriate to their age and legal status.
As it is justly noted in Paragraphs 70, 72, 75, 76 of the Fifth Periodical Report of the Russian Federation, during the period of 1994—2002 Russia has
undertaken a number of measures to humanize the criminal implementation system (UIS), which has had a positive influence on the conditions of
prisoners. Yet, at present it is impossible to claim that in Russia prisoners
have been ensured humane treatment and conditions which guarantee the
respect of their human dignity.
At the end of 2002, the Moscow Helsinki Group in partnership with human
rights organiations organized the monitoring of prisoners’ conditions in all
89 regions of Russia. The monitoring conducted by human rights organizations revealed mass and systematic violations of the UN Standard Minimum Rules for the Treatment of Prisoners.
The monitoring effort revealed, in particular, that only one half of the
Russian Federation’s regions ensure healthy feeding of prisoners. In other
regions,92 prisoners, including those who have tuberculosis and need improved rations, do not get the necessary products in sufficient quantity.
Cases of dystrophy were registered, although their number went down in
comparison with previous years. Limited food rations are still used as a
means of disciplinary punishment in accordance with Article 118 of the
Criminal Implementation Code (UIK) of the Russian Federation. In the
Leningrad, Bryansk and Kirov regions, the administration of correctional
institutions denounced the limiting of food rations for penalized prisoners,
while in other regions limited food rations are still used to this purpose.
Prisoners do not always receive necessary medical aid. Practically everywhere prisoners, and especially those under investigation, have great difficulty finding access to medical aid. Only the prosecutor’s office surveying
the Karelia Republic received 31 complaints on the refusal to provide medial aid93 in 2001.
In most correctional institutions, prisoners face great difficulties in maintaining personal hygiene and retaining dignified appearance due to the in91
When preparing this section, we used the results of the monitoring of the conditions of
prisoners in Russia provided by the Moscow Helsinki Group, as well as the information presented by the Krasnoyarsk Territory Foundation “Legal Protection,” Nizhny Novgorod Committee against Torture, Center for Assistance to International Protection, and Center for Assistance to Criminal Justice Reform.
92
In the Karelia Republic, in the Astrakhan, Bryansk, Voronezh, Kirov and Rostov regions in
particular.
93
Regional Report “Penitentiary System in the Karelia Republic — 2002.”
68
sufficient supply of hot water and hygienic means. Women are those who
suffer most from such deficiencies.
Normal transportation conditions of prisoners are still not ensured. According
to the Chief Department for Penalty Execution data (GUIN), as the situation
stands “for January 1, 2000, transportation of prisoners under guard is organized in 190 special railroad cars when the norm requires 211 cars, and
473 special trucks, when the norm is 735 trucks.”94 Due to the deficit in
transportation means, prisoners are transported in an extremely narrow
space where sufficient ventilation and lighting is absent. Transported prisoners do not get enough water, if any. They either get little food or no food at
all during transportation, no matter how long the route is.
In pretrial detention facilities (SIZOs), Paragraph 9 of the Standard Minimum Rules on premises for keeping of prisoners is absolutely not observed.
According to the Chief Department for Penalty Execution, in Russia as a
whole pretrial detention facilities have only 1.7 m2 per person, and some
institutions have 0.5 m2 per person. Pretrial detention facility cells where
prisoners are kept do not have, as a rule, sufficient ventilation, and do not
always have proper lighting. Practically all pretrial detention facilities in
Russia have toilets in the same room where prisoners are kept. And the
toilet has often no screen around it.
On July 15, 2002, the European Court of Human Rights reviewed the
Kalashnikov v. Russia case and judged that the conditions in which Kalashnikov spent five years in the Magadan pretrial detention facility violate
Article 3 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms. The Russian government informed the European Court on the measures to improve the situation in the penitentiary
system as a whole and in the Magadan pretrial detention facility in particular. Yet, even now the prisoners of the Magadan pretrial detention facility lodge the same complaints found in the Kalashnikov case.95
Russian authorities claim that the disastrous conditions in which prisoners
are kept are not intended violations of their rights, because the conditions
are caused by objective factors, in particular the state of Russian economy.96
The results of the monitoring effort conducted by the regional human
rights organizations and coordinated by the Moscow Helsinki Group confirm that most problems concerning the supply of clothes, food, medical
aid, and proper conditions of incarceration are really caused by insufficient
financing of the penitentiary system.
At the same time, humane treatment of prisoners is a fundamental rule.
This rule must be observed notwithstanding the material resources at
hand.97 That is, when sufficient means for a large number of prisoners are
absent, Russia must take efforts to decrease the number of prisoners. The
introduction of the procedure of judicial arrest (i. e., court approval for arrest) has somewhat decreased the number of detainees in pretrial detention facilities. Yet, the measures alternative to arrest (freeing on bail, home
94
V. Zhukov, “The Service Guard Transported More than Two Million Convicted and Detained Persons.” Vedomosti UIS (#2, 2000).
95
The information is provided by the Center for Assistance to International Protection.
96
Paragraphs 81, 82 of the Fifth Periodical Report of the Russian Federation.
97
Paragraph 4 of General Comment #21. (April 10, 1992).
69
arrest, etc)98 cited in the Fifth Periodical Report of the Russian Federation
are practically never applied to the suspected and charged persons. Other
rarely applied institutions include extrajudicial settlement and simplified
procedures of criminal case reviews. Punishments such as limited freedom
or obligatory labor are not used at all, although they are envisaged by the
new RF Criminal Code.
Besides that, there are problems in the sphere of prisoner rights that cannot be explained by just insufficient finances. The monitoring of prisoner
conditions conducted across Russia by regional human rights organizations
and the Moscow Helsinki Group revealed a considerable number of violations that appear on the part of the penitentiary administration and individual officers.
There are, in particular, many complaints of the use of violence on the
part of the officers of the criminal penalty implementation system. Thus, a
poll of recent prisoners showed that in many penitentiary institutions, punishments for disciplinary offense or actions disliked by the administration
include beatings and other forms of corporal punishment.99 Beating by the
guards during transportation is almost universal. The interviews of women
who are kept in the Oryol, Tomsk, Rostov regions and the Jewish Autonomous District reveal sexual harassment and violence on the part of the
persons who ensure the guarding of prisoners.100
The presence of these violations is due to low efficiency of control over the
observance of prisoners’ rights. The mechanism to control the observance
of prisoners’ rights, envisaged by the RF Criminal Code, contains the right
of the prisoner to lodge a complaint under the system of administrative101
and prosecutorial control.
Russian normative acts provide the prisoner with the right to lodge complaints, to write petitions and suggestions, to send them to various levels of
administration, and to give detailed regulations for the use of this right.102
However, it is not always possible to fully realize this right. Thus, in 2002,
the monitoring of prisoners’ conditions revealed that the administration of
incarceration facilities of the Perm, Bryansk, Rostov, Kamchatka regions
and of the Altai territory often had their prisoners punished for making
complaints about the illegal actions of the administration. But even when
the administrations of penitentiaries do not interfere with their prisoners
lodging complaints and sending them to the prosecutor surveillance, the
effectiveness of these complaints is extremely low.
Low efficiency of the prosecutor surveillance is explained by the fact that
despite the wide powers ensured by law,103 the prosecutor’s office generallydoes not conduct proper investigation of prisoner complaints concerning
98
Paragraphs 65 and 77 of the Fifth Periodical Report of the Russian Federation.
This information comes from the Tyva Republic, North Osetia Republic, Buryatia, Mordovia, from the Kursk, Kurgan, Voronezh, Nizhny Novgorod, Perm, Tomsk and Tyumen,
Leningrad, and Rostov regions , from the Altai and Krasnodar territories.
100
This information is provided by the Center for Assistance to International Protection.
101
Of the Ministry of Justice.
102
Articles 17 (Part 3 and 7), 21, 39, 40 of Federal Law “On Keeping in Incarceration,” Articles
12, 15, 91 of the RF Criminal Implementation Code, Articles 49, 94—103 of the Internal Rules of
the Pretrial Facilities, Sections 3.1 and 13 of the Internal Rules of Correction Institutions.
103
Article 33 of Federal Law “On the Prosecutor’s Office.”
99
70
breaches of their rights: they do not conduct investigations on the spot,
and they do not find and interrogate witnesses. Quite often, the prosecutor’s office sends complaints concerning penitentiary conditions to be reviewed and settled by the head of the penitentiary where the complaint
originated.
Inspection of the penitentiary is also not an efficient way to solve prisoners’
problems. A considerable amount of the inspections of correctional institutions is conducted by the Chief Department for Penalty Execution itself.
When conducting such inspections, the inspectors focus on organizational
and administrative problems instead of prisoners’ rights. Surveying prosecutors regularly visit correctional institutions. They personally see prisoners,
yet, just as it happens with written complaints addressed to the prosecutor’s
office, oral complaints have practically no effect.
In 1997, the Institution of the Ombudsman was created in the Russian
Federation. The Ombudsman has the right to check prisoners’ complaints
and to visit penitentiary facilities.104 Also, the offices of Regional Ombudsman have been introduced in 15 regions of Russia, but their potential for
controlling the situation has substantial restrictions.105 The influence of
Ombudsmen on the situation in penitentiaries is still inconsiderable, which
is in many ways explained by inefficient personnel and resources.
It is doubtless that civilian oversight of penitentiaries could have made up
for the faults in the existing control mechanisms. The bill “On Civilian
Oversight of Human Rights Observancein Incarceration Facilities and Promotion of their Functioning on the Part of Public Organizations” was
adopted by the State Duma in 2000, but was then refuted by the Federation Council. When both Chambers of the Russian Federal Assembly
agreed on the final version of the bill, it was not adopted due to the negative reaction of the RF Government. To note, the reaction of the executive
branch can be explained by the fact that despite the compromise achieved
in this draft law, which was agreed upon with human rights organizations
and supported by them, the government could not accept “any control
over government institutions by public organizations.”106
Besides the low efficiency of control over penitentiaries, it is necessary to
note the insufficiency of specific measures aimed at preventing torture and
cruel and degrading treatment of prisoners. The one positive measure in
this area is the transfer of the penitentiary system to the jurisdiction of
the Ministry of Justice, which does not detect and investigate crimes. Yet,
not all pretrial detention facilities were transferred to the Ministry of Justice’s jurisdiction. Thus, the FSB pretrial detention facility Lefortovo in
Moscow was not transferred to the Ministry of Justice jurisdiction. As a
result, all persons whose criminal cases are investigated by the FSB bodies
are completely under the control of the state prosecution, and this promotes violations of their rights.107 Besides this, all temporary detention facilities (IVS) of the Ministry of Internal Affairs remain under this Ministry’s jurisdiction, and suspects can be detained there anywhere from three
104
Article 23 of Federal Law “On the Ombudsman.”
They, in particular, have no right of free admission to penitentiaries.
106
The Response of the RF Government #494p-P4 of August 16, 2001, signed by the Vice
Chairman of the Government of the Russian Federation V. Khristenko to the draft law tabled
in the State Duma and Federation Council of the Russian Federation.
107
Information provided by the Center for Assistance to International Protection.
105
71
days to several months. During the period when the main part of the
criminal case’s evidence is collected, prisoners are under absolute control of
the criminal prosecution, which is the exact situation in which prisoners
are likely to be tortured. Besides that, even if a person is placed in a pretrial detention facility (SIZO), he/she can be transferred back to a temporary detention facility for the conduction of investigation operations, which
can sometimes last for long periods of time since pretrial detention facilities and temporary detention facilities can be located in different towns.
In 2002, human rights organizations received disturbing information that
prisoners were once again being tortured in order to make them confess to
crimes, both in pretrial detention facilities and in correctional institutions
which are now under the jurisdiction of the Ministry of Justice. During the
period from August 2002 to January 2003, for example, human rights organizations of Nizhnii Novgorod alone received five complaints from pretrial detention facilities and correctional institutions of beatings aimed at
extorting evidence and forcing confession.108 This phenomenon is obviously
caused by the activity of so-called “operative groups” or “operative services,”109 which are employed not only to detect and prevent crimes committed or planned on the territory of penitentiaries, but also to detect
crimes committed outside these institutions.110 In July 2002, in particular, in
pretrial detention facility IZ-52/1 Leonid Volkov, a minor, was beaten to
make him confess to a murder.111 Simultaneously, the investigators attempted to use the same means to force another minor, Andrei Osenchugov, to confess to a series of robberies. The evidence given by the victims and their cellmates shows that this “crime detection work” was
organized by Muravyov, an officer of the operative department of the pretrial detention facility; the actual beating was carried-out by two adult
prisoners who were placed into the cell with underage inmates by the officers of the pretrial detention facility for that purpose.112
This case was revealed only due to the fact that during the court session,
which took place two days after the torturing, A. Osenchugov felt bad. A
doctor was called who registered bodily damages. Later, the document
which confirmed bodily damage provided the basis to open investigation
concerning the circumstances that led to them.
To note, as a rule, a prisoner does not have access to an independent medical
expert, since the medical personnel of penitentiaries (with the exception of
temporary detention facilities) is made up of the Ministry of Justice’s officers
subordinated to the head of the penitentiary, instead of “civilian” physicians.
Information coming from other incarceration facilities makes it possible to
claim that the medical personnel of incarceration facilities are often forced to
succumb to the demands of the operative department. In some correctional
institutions of the Bryansk region, in particular, physicians were not able to
send a prisoner to the hospital if the operative department forbade it.113
108
Information provided by the Nizhny Novgorod Committee Against Torture.
Which act according to Article 13 of Law “On the Operative-Investigation Activity.”
110
Article 13 of Law “On the Institutions and Organs Executing Punishment,” Rule 13 of the
Internal Rules for Pretrial Facilities.
111
A testimony of the person who committed the crime which provides the base to open criminal case and to pursue investigation, which is also the evidence of the guilt of the given person.
112
Inspection materials of the Nizhny Novgorod Committee Against Torture.
113
From an interview with a recent prisoner. Facility #OZh-118/3 (Pereleshino railroad station).
109
72
ARTICLE 12
1. Everyone lawfully within the territory of a State shall, within that territory,
have the right to liberty of movement and freedom to choose his residence.
The right to liberty of movement and freedom to choose one’s residence in
Russia is laid down by Paragraph 1, Article 27 of the Constitution of Russia,
under which everyone lawfully within the territory of the Russian Federation has the right to move freely and to choose one’s place of stay and residence. In current legislation, this norm is detailed in the Federal Law #5242I of June 25, 1993, “On the Right of Citizens to Liberty of Movement, Choice
of the Place of Stay and Residence within the Russian Federation.”
Liberty of Movement
The aforementioned law does not define the right to liberty of movement,
and contains many gaps. In particular, the law largely neglects the question of the objects and territories under regulated access (it only mentions
the border-land; closed military townships; closed administrative-territorial
units; ecological distress zones; separate territories and populated centers
where special conditions and regulations for the life and economic activity
of the population have been imposed, because of the threat of infectious
and mass non-infectious diseases and poisoning of people; territories under
the state of emergency or martial law). As a result, institutions and enterprises of various forms of ownership establish arbitrary restrictions and
bans on the movement of people within territories controlled by these institutions and enterprises de facto (regardless of the ownership of land
plots and structures). Thus, many mining companies arbitrarily ban movement into large territories of Siberia and the Extreme North.
Federal Law “On the Right of Citizens to Liberty of Movement, Choice of
the Place of Stay and Residence within the Russian Federation,” which is
essentially a law on the mandatory registration at the place of residence
and stay, does not contain adequate guarantees against the violation of the
right to liberty of movement. It speaks in general terms only about the
possibility to appeal to administrative and judicial bodies the actions or
omissions violating legitimate rights, but no responsibility is legislatively
established for violation of the right to liberty of movement and choice of
residence.
The possibility to exercise the right to liberty of movement in Russia is
made dependent on extraneous, often insurmountable conditions, and is,
therefore, unlawfully restricted.
A person may move from one populated locality to another only if he/she
has a document certifying his identity.
A person may travel only if he/she has a ticket, which he must purchase
personally in his/her name, and which contains accurate data from the
person’s identity papers.
To move from one populated locality to another, even for a short time, a
person must have money to stay at a hotel or complete the formalities for
the right to use some other dwelling, which is subject to many, often insurmountable, procedural restrictions.
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In Russia, the right to movement per se is violated primarily by the restriction of the right to anonymous movement. Thus, tickets used for railway,
water, and air transportation indicate the number of the document certifying the identity of the passenger. When a passenger boards a railway car,
ship, or plane, documents certifying his/her identity are checked along with
the ticket. In other words, without a document certifying his/her identity a
person cannot leave a populated locality even if he/she has a ticket in
his/her name. Moreover, even if a person has identity papers, he/she still
cannot use the services of transport companies if he/she produces a valid
ticket in the name of some other person. This rule has been established by
Resolution #277 of the RF Government of March 11, 1999.
As to movement by a private car, throughout the territory of Russia the
traffic police at stationary posts may check the identity papers not only of
the driver, but also of the passengers (especially if the car is registered in
some other region of the Russian Federation). If any passenger riding in the
car has no identity papers, he/she may be detained and held in custody for
up to one month to establish his/her identity without any court decision.
It must be noted that the freedom of movement within Russia is considerably obstructed by the introduction of the concept of “place of stay,”
which was implemented for the first time in Federal Law “On the Right of
Russian Federation Citizens to Liberty of Movement, Choice of Place of
Stay and Residence within the Russian Federation” (adopted in 1993).
While declaring the right to liberty of movement, this law obliges citizens
to register not only at the place of residence, but also at the place of stay.
Under Article 2 of the given law, only an institution or a dwelling may be
used as a place of stay. Preparation and approval of the rules for registration at the place of stay was fully delegated to the RF Government, which,
in turn, related the possibility of registration with many housing and other
requirements. This was done in Resolution #713 of July 17, 1995 entitled
“On the Approval of the Rules of Registration of Russian Federation Citizens and their Withdrawal from Registration at the Place of Stay and
Residence within the Russian Federation.”
According to the RF Constitutional Court February 2, 1998 ruling, Paragraphs 10, 12 and 21 of these Rules of Registration were declared unconstitutional, which adds new restrictions to the law. However, the bodies of
executive power and, frequently, the courts ignore this ruling.
Moreover, residence without registration is punishable by administrative
penalties — fines imposed under Articles 19 and 15 of the current RF Code
of Administrative Offences.
The executive power bodies interpret the choice of the place of stay and
residence only as a choice of a concrete dwelling with a prerequisite that
there must be some documented right to the use of the dwelling. However,
when imposing administrative penalties, the same executive power bodies
maintain that the absence of registration in the given populated locality
already exhaustively constitutes an administrative offence.
By virtue of the July 17, 1995 Resolution #713 of the RF Government, the
obligation to register at one’s place of stay arises if one intends to stay at
the place for more than ten days. However, this is impracticable: a person
must apply to an official responsible for registration (housing authorities)
within three days of his/her arrival; then within three days registration
officials must pass his/her documents to the registration authorities (police
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or village Soviet), and within three days the registration authorities must
register the citizen. In view of the fact that there is no period of nine continuous work days in Russia, citizens are often unable to comply with the
said Resolution, and obtain registration over ten days.
The restrictions introduced and applied in Russian regions complicate the
existing rules for registration of movement even more.
Thus, in Moscow, the allowable period of stay without registration has
been reduced from ten to three days, with the period during which a person must apply to the housing authorities for registration reduced from
three days to one day. The registration procedure has been made even
more complex by the following:
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the period of stay has been restricted (45 days, three moths, six
months, a year, depending on the category of citizens);
all members of the family of the person who lets the newcomer into
his/her dwelling must simultaneously come to the housing bodies and
state their consent to the registration of the citizen at the place of stay;
there must be no arrears on the maintenance payments for the dwelling to be used by the tenant;
payment for the communal services must be made in advance for the
entire period of the possible stay of the tenant;
“state duty” must be paid, although no federal law provides for payment
of any duties or levies in the event of registration at the place of stay;
a photo of the tenant and sometimes his fingerprints are required;
an application for registration is not accepted if it does not bear a note
of the local police inspector stating that the arriving person has been
vetted in the police files;
it is necessary to observe the minimum floor space requirements (6 sq.
meters per person, including the person to be registered);
official documents have to be produced to confirm the purpose of the
arrival (from a hospital, place of study or work, birth certificate, etc.);
having made sure that the submitted documents are “complete and correct” the housing authorities still do not accept them, but send the person to the head of the passport desk for an obligatory preliminary talk.
It is quite obvious that all this cannot be done within the very short period
stipulated by the rules, and that such rules for registration at the place of
stay do not facilitate citizens’ exercise of the right to liberty of movement.
Moreover, a person becomes victim to harassment and corruption within
law enforcement.
Choice of the Residence
As a rule, the right to choose one’s residence includes the right to freely
settle down and live in any locality within the territory of the state, as well
as the right of the person who has chosen his/her residence to use all
benefits and rights on a par with other people living in this locality. In the
Russian Federation, the possibility to exercise this right is made conditional
on the availability of a concrete dwelling and a documented right to the
use of this dwelling. A person cannot settle down where he cannot register
at the place of residence. Moreover, residence without registration is punishable by administrative penalties, and a person may be fined several
times if he remains without registration in the same locality. The problems
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and restrictions which a person runs into when he/she submits an application for registration at the place of residence have been generally described above: the procedure of registration at the place of residence is in
many respects similar to the procedure of registration at the place of stay.
A person registering at the place of residence similarly runs into many restrictions which are established by regional rather than federal laws.
Thus, in Moscow, on top of the restrictions cited above, the documents
submitted to the registration authority for registration of a person at the
place of residence are sent, without the knowledge or consent of the individual, to a so-called housing commission which considers the possibility of
registration at the place of residence, although no such commission is provided for by law. In many cases, this commission delivers a negative decision. As a result, the registration authority refuses to register a person at
the place of residence, saying that the regional or local housing commission
has refused to allow the person to move into the dwelling. This contradicts
Federal Law “On the Fundamentals of the Federal Housing Policy,” under
which no administrative restrictions are allowed on the occupation of
dwellings. By virtue of Article 54 of the RSFSR Housing Code, a tenant of
social housing may, at his/her discretion and with the consent of all persons occupying the dwelling together with him/her, allow any person to
live in the dwelling.
Therefore, while introducing no formal restrictions on the settlement of a
person in a concrete locality, the local authorities violate the law and forbid the person to settle in a concrete dwelling. At the same time, the availability of a dwelling place is a necessary condition for settlement in the
locality chosen by a person as the place of residence.
Paragraph 1, Article 3 of Federal Law “On the Right of Citizens to Liberty
of Movement…” states that registration is introduced to ensure the necessary conditions for the citizens to exercise their rights, and to ensure their
fulfillment of their obligations. In practice, this provision is interpreted in
such a way that a citizen who has no registration at the place of residence
is deprived of practically all constitutional rights.
If a citizen of the Russian Federation has settled down on some territory
and for whatever reason has not registered at the place of residence, as a
rule, he cannot get a job, receive any social benefits, participate in elections, obtain credit at banks, receive medical aid, etc. Cases have been reported when courts refused to accept suits and complaints from citizens
who had no registration of residence or have not completed the required
formalities.
This can be exemplified by the case of S. Smirnov, whose former wife exchanged his flat without his consent while he was serving a prison sentence, and thus deprived him of housing. Because of the absence of registration, S. Smirnov is now unable to exercise any of his constitutional
rights. In the past three years, he has initiated and lost 17 court cases, and
courts of various levels have not ruled it unlawful that, owing to the absence of registration, he was not allowed to:
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get employment, although suitable vacancies (yard keeper) were available;
register the marriage;
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obtain bank credit in the amount of $30 in accordance with his business plan (selling of ball pens);
register as an unincorporated entrepreneur;
rent a folding bed and one set of tableware (although the these objects
were available at the rental shop);
receive a compulsory medical insurance policy;
gain admission to a Russian state-owned library;
use mobile communication services;
have his name entered on the voter list;
register as an unemployed person;
have his lawsuit accepted.
The courts explained the motives of their decisions saying that a citizen
must register at the place of residence, and that the absence of such registration prevents the government and private organizations from ensuring
the exercise of his/her rights. For instance, commercial banks cannot grant
credit to unregistered persons, because this is prohibited by the instructions of the Central Bank of Russia; the Moscow Registration Chamber
cannot register a person as an unincorporated entrepreneur in view of the
relevant memorandum of the tax authorities, and also because the person
cannot be entered into the computer database which at the program level
requires mandatory completion of the column “registered at the address.”
Under these circumstances it cannot be stated that in Russia an individual
may exercise the right to freely choose his/her residence. Neither can it be
stated that judicial remedies are effective in this case.
Under Paragraph 2, Article 11 of Federal Law “On the Legal Status of
Foreign Nationals in the Russian Federation” adopted in 2002, a foreign
national temporarily residing in the Russian Federation may not change at
his/her wish his/her residence within the subject of the Russian Federation, where he/she has been allowed to reside temporarily, or to choose
his/her residence outside this subject of the Russian Federation.
The applicable laws allow restrictions to be imposed on the movement and
residence of foreign nationals and stateless persons on separate territories of
the country, but fully delegate the right to establish such restrictions to the
RF Government. Sine 1992, the RF Government has periodically updated
the list of territories with restricted access, but no criteria and conditions
have been established for selection of such territories.
* * *
2. Everyone shall be free to leave any country, including his own.
In accordance with Paragraph 2, Article 27 of the RF Constitution, everyone may freely leave the Russian Federation. Russian Federation citizens
have the right to return to the Russian Federation unhindered. Paragraph
1, Article 2 of Federal Law “On the Procedure of Exit from and Entry into
the Russian Federation” lays down that the right of a Russian citizen to
leave Russia shall not be restricted otherwise than on the grounds and in
the procedure established by this law. So far as foreign nationals are concerned, there are no laws, including the aforementioned Federal Law “On
the Legal Status of Foreign Nationals in the Russian Federation” that provide such guarantees.
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A Russian citizen may leave Russia only if he/she has a traveling passport
— a document certifying the identity of a Russian Federation citizen outside Russia. According to Paragraph 1, Article 8 of Federal Law “On the
Procedure of Exit from and Entry into the Russian Federation,” the passport is issued to a Russian Federation citizen on the basis of his/her written application, which is submitted personally or through his/her lawful
representative, by an internal affairs body or the RF Foreign Ministry on
the territory of the Russian Federation, or also by the diplomatic or consular mission of the Russian Federation outside the territory of the Russian
Federation in cases provided for by the given law.
Several documents have to be submitted for receipt of a traveling passport, including the list of organizations where the applicant has worked in
the past ten years prior to the submission of the application. A traveling
passport is issued to a Russian citizen by the internal affairs bodies for a
period of five years, and may be seized at any time for reasons connected
with national security. If a citizen has been registered at a place of residence, the law establishes a period of one month for consideration of the
citizen’s application for a foreign passport. In the absence of registration at
the place of residence, a traveling passport must be issued by internal affairs bodies at the place of stay. In reality, these periods are often exceeded, and it is very difficult for a citizen to receive a foreign passport in
the absence of registration at the place of residence or stay.
When a traveling passport is to be issued, the person is vetted in the files
of the internal affairs bodies and special services. Although the law entitles
the person to receive explanations if his/her application is rejected, in reality such explanations are not provided at times. It is noteworthy that the
period during which a citizen is banned from leaving the country may be
extended without the knowledge or notification of this citizen.
The refusal to allow exit from the country based on the fact that the person possesses some information which constitutes a state secret may be
appealed to the Interdepartmental Commission under the RF Government
or to a court.
Children may freely leave the country only with one of their parents provided written consent of both parents, and if any disputes arise the matter
has to be resolved in court. These norms particularly affect the rights of
children when the location of one of the parents is unknown.
If a child who is leaving Russia is not accompanied by his/her parents, the
written permission of the guardianship and wardship body and a notarized
document from the parents or guardians are required.
The exit of foreign nationals permanently residing on the territory of Russia is made complicated by the need to receive an exit visa from the internal affairs bodies of the Federation, a process which sometimes takes
weeks.
Under no circumstances can stateless person permanently residing on the
territory of Russia lawfully leave the territory of Russia, because the series
“A” card issued to stateless persons as a document certifying their identity
abroad is not recognized by the international community as an identity paper. Therefore stateless persons cannot receive travel documents, unless
such documents are issued to them by the structural divisions of the
United Nations, such as the UN High Commissioner for Refugees.
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At present, under multilateral and bilateral agreements concluded by the
CIS countries, Russian Federation citizens and citizens of some other CIS
countries residing in the Russian Federation may leave Russia and go to
the relevant CIS countries if they have a civil (domestic) Russian Federation passport or a civil USSR passport with a note certifying their citizenship of the Russian Federation or some other CIS state. Citizens of the
former USSR who have Soviet passports without the note certifying their
citizenship, say, Russian Federation citizenship, are deprived of the right to
leave their country legally even when they intend to travel within the CIS.
* * *
3. The above-mentioned rights shall not be subject to any restrictions except those
which are provided by law, are necessary to protect national security, public order
(order public), public health or morals or the rights and freedoms of others, and
are consistent with the other rights recognized in the present Covenant.
From what has been said in the sections relating to Paragraph 1, Article 2,
Paragraphs 1 and 2, Article 12, and Article 26 of ICCPR, it follows that
these rights are subject to undue limitation as a result of both impracticable procedural restrictions and the pursuance of a policy aimed to limit the
migration or to discriminate against certain groups of the population. The
right of Russian Federation citizens and foreign nationals to leave the
country may be restricted by arbitrary decisions of governmental agencies.
* * *
4. No one shall be arbitrarily deprived of the right to enter his own country.
The right of Russian citizens to enter the territory of the Russian Federation
is practically unrestricted, but those Russian citizens who permanently reside outside the Russian Federation cannot exercise a range of basic rights.
A special passport of a Russian citizen permanently residing outside Russia
is not recognized as a personal identification document on the territory of
the Russian Federation. Therefore, persons holding such passports cannot,
as a rule, make any transactions, including acceptance of inheritance, etc.
And the restriction placed upon such people which is most important in
contemporary Russian conditions is that a person with such a passport
cannot register at the place of residence. Theoretically, such citizens can
register and receive a civil (domestic) passport at the place of stay. However, in actual practice this mechanism does not work.
The recent positive changes in regards to the possibility to receive a passport at the place of stay in the absence of registration at the place of residence do not apply to those Russian Federation citizens permanently residing outside of Russia.
ARTICLE 13
An alien lawfully in the territory of a State Party to the present Covenant may be
expelled therefrom only in pursuance of a decision reached in accordance with
law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case
reviewed by, and be represented for the purpose before, the competent authority
or a person or persons especially designated by the competent authority.
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The issue of the observation and implementation of Article 13 of ICCPR by
the Russian Federation arose when the RF Government Resolution #641 of
August 30, 2000, “On the Exit of the Russian Federation from the Agreement on Visa-Free Travel of Citizens of the States-Members of the Commonwealth of Independent States on the Territory of its Members” came
into effect. Since that moment, Russia began to review its policy with respect to former USSR citizens — citizens of the countries of the CIS, as
well as individuals without citizenship residing on the territory of Russia.
This review was completed in 2002 with the adoption of Federal Law “On
the Legal Status of Foreign Nationals in the Russian Federation” and a
package of by-laws in regards to it. The requirements imposed by this law
on former Soviet citizens were the same as for all other foreigners, the requirements themselves having become stricter. This resulted in the fact
that a large number of citizens of the former USSR — including those who
have acquired citizenship in one of the new independent states and those
who have not done so — that have legally entered Russia and have not
violated any of its laws, found themselves in the position of being illegal
migrants due to their inability to objectively comply with the new requirements. These people had been entering Russia freely and without any
control since the breakup of the USSR in 1991. To note, until 2001 Article
5 of the USSR Law “On the Legal Status of Foreign Nationals in the
USSR” adopted in 1981 providing that foreign citizens may reside in the
USSR if they have relevant permission or a residence permit issued by
law-enforcement authorities, had not been applied to former Soviet citizens, as opposed to all other foreigners.
State authorities never issued any documents explaining whether the 1981
Law “On the Legal Status of Foreigners in the USSR” might restrict the
right of citizens of the former USSR to reside in Russia if, prior to the
USSR breakup, the requirements and restrictions provided for by this law
did not and could not affect these people. Therefore, these people registered with authorities at the place of their stay and residence in the same
fashion as Russian citizens. There were no restrictions imposed on them as
to the term of their stay in the RF or their right to permanently reside in
the country. Residence permits were not be issued to them, and the restrictions introduced for foreign citizens did not apply to citizens of the
former USSR, even to the point that some of them were freely employed
by state authorities, including the military.
Upon Russia’s exit from the visa-free travel agreement in 2000, the situation of these individuals changed quite drastically. Those of them who had
been registered at the place of residence were issued residence permits
(this process still continues today), whereas persons registered at the place
of stay and those unregistered at all found themselves deprived of their
rights.
Especially citizens of those former states with which Russia had not signed
any other agreement on mutual visa-free travel, as well as citizens of the
former USSR who had not acquired any other citizenship but were registered as residents on the territory of the former USSR republics (except
RSFSR), were seriously affected. It should be noted that many of these
people had moved to Russia before the breakup of the USSR. Among
them, for example, were individuals who had to leave the Azerbaijan Republic in 1989—1990, or the Meskhetian Turks who also had to flee from
Soviet Central Asia at about the same time.
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Right after the RF Government Resolution #641 of August 30, 2000 “On
Exit of Russia from the Agreement on Visa-Free Travel of Citizens of the
States-Members of the Commonwealth of Independent States on the Territory of its Members” came into effect, mass verification of employers began on account of their granting employment to these individuals. Their
registration at the place of stay and place of residence was stopped. Nationals of the former USSR who had not acquired any other citizenship
were compelled to replace their USSR passports with national passports of
the states in which they had been registered prior to the breakup of the
USSR. In fact, the creation of unbearable conditions forced people to acquire citizenship in these new states. During the same period, from December 2000 through June 2002, Russian diplomatic authorities issued
Russian Federation passports in large quantities to individuals residing in
territories of self-proclaimed states which had formerly been parts of
USSR republics (Abkhazia, Transdnestria).
At the same time, numerous factual deportations of individuals who had
legally entered Russia and were citizens of those former USSR states with
which Russia had not signed new agreements on visa-free travel were observed. Note that deportation cases were not processed officially. For example, in Moscow during the winter-spring of 2000/2001, raids were conducted under the pretence of verifying compliance with the passport
regime, which resulted in the apprehension of citizens of these states, as
well as individuals whose 1974-type of USSR passports contained stamps
of registration on the territory of these states (mainly Georgia). Following
this, airplane and train tickets were booked and purchased in the names
and at the expense of the persons thus detained. Cases are known where
detainees who had no means to pay for their train tickets were retained in
confinement until their relatives or friends would come up with the money
necessary to cover their travel expenses. Thus, people who had legally entered Russia and had no restrictions imposed upon them with respect to
the term of their permitted stay, were deported from Russia solely by lawenforcement authorities, without any court ruling or other appropriate decision.
ARTICLE 14
Modifications in Russian Laws with Regard to Judicial Proceedings
As noted in the Fifth Periodical Report of the Russian Federation, the Russian laws on legal proceedings and the judiciary have been significantly
modified since the last report.
In particular, the RF Criminal Procedure Code was adopted on December
18, 2001, and was essentially in effect until July 2002. It promulgated the
adversary principles of criminal proceedings, equality of prosecution and
defense in a court of law, presumption of innocence, and the right to privacy; it provided for the prosecutor’s oversight and judicial control of the
legality of preliminary criminal investigations.
Despite the seemingly democratic nature of a number of norms in the
RF Criminal Procedure Code, many of its provisions run counter to the
international standards for fair proceedings; in certain aspects, they even
degrade the status of the accused (suspect) and that of the defense if compared to the previously operated Soviet procedure laws.
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For instance, the new Criminal Procedure Code allows the judge, to whom
the suspect is brought within 48 hours after the actual detention, to grant
the prosecution another 72 hours to obtain additional evidence, during
which time the accused will remain in custody, although neither the investigator nor the prosecutor can prove the validity of the detention.
Furthermore, as the Criminal Judicial Assembly of the Supreme Court of
the Russian Federation clarified, the apprehended, when appealing his/her
detention in a ñourt of ñassation, has no right to personally attend the proceedings.
The apprehension appeal procedure is ineffective for both the suspect and
defense. The prosecutor can take from three to even ten days, if he so
wishes, to consider the complaint, while the judge has a period of five days
to examine the complaint. In practice this means that, as a rule, the prosecutor or judge’s resolution on a complaint will not be relevant, since by the
time it is pronounced the suspect will either have been released or formally arrested.
The non-appearance of the defense for five days at proceedings, even on
valid reasons, leads to the disqualification of the defense chosen by the accused, and to the appointment of an advocate according to the judge’s ruling. The Criminal Procedure Code allows trial in absentia for cases of misdemeanor or less serious offences (punishable by imprisonment terms of no
longer than five years). The number of instances in which the hearing of
criminal cases can be conducted in camera has been extended; besides, the
wording in the relevant laws is indistinct and fuzzy. There are no effective
guarantees against falsification of session records by judges.
Some categories of cases are difficult to appeal, once the verdict of guilty
and the relevant sentence are received. In particular, even if the defendant
pleads guilty of a minor or medium offense, he/she cannot appeal the sentence in cassation, referring to incongruity of the court’s conclusions with
the actual circumstances of the case. One cannot appeal the judge’s order
of the dismissal of the lay jurors, which is used by judges in order to recall
acquittals granted by lay jurors through such dismissal practices.
We believe that in the spirit of Article 14 of ICCPR the current Criminal
Procedure Code should be revised to achieve full compliance with the adversary principle, equality of prosecution and defense, and the observance
of the rights of the accused.
Individual provisions of Article 14 of ICCPR
1. All persons shall be equal before the courts and tribunals. In the determination
of any criminal charge against him, or of his rights and obligations in a suit at
law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may
be excluded from all or part of a trial for reasons of morals, public order (ordre
public) or national security in a democratic society, or when the interest of the
private lives of the parties so requires, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity would prejudice the
interests of justice; but any judgement rendered in a criminal case or in a suit at
law shall be made public except where the interest of juvenile persons otherwise
requires or the proceedings concern matrimonial disputes or the guardianship of
children.
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Equality Before the Courts
According to human rights organizations, criminal courts normally proceed
with full confidence in police testimony and representatives of state bodies
in general, while testimony provided by individuals non-compliant with
that provided by officials is doubted or totally disregarded by the court,
often with no motivation given.
For instance, in the case against Roman Belevitsky (2001—2002) there were
two groups of contradicting evidence. The court ignored Belevitsky’s evidence completely, as well as the testimony of witnesses of his apprehension, witnesses of his body search, and the medical certificate regarding
bodily injuries found on him after his stay at the police station. All the said
evidence was defeated by ungrounded testimony of police officers, which
then was used as the basis for conviction.114
Access to Justice
Formally, the new Criminal Procedure Code provides the opportunity to
appeal an investigation and court’s actions (Article 125) in the same manner as Chapter 25 of the new RF Civil Procedure Code provides manifold
access to court should any complaints arise about officials’ and/or authorities’ actions, or failure to act, which violate the constitutional rights of citizens. In practice, both lawyers and private persons point out that there is
no effective access to court. It is virtually impossible to get an appointment
with a judge to file a civil suit. At the same time, documents mailed to
courts are often lost, which significantly protracts the proceedings. Thus,
an equal access to justice has not been ensured.
The practices of courts’ offices on civil cases are the subject of numerous
complaints. Inappropriate management of the courts’ offices and the clerks’
style of treating individuals hinder the access to justice even further. Private persons are granted access to the files on their civil cases only two
times a week at certain fixed hours. As the cases are rife, long lines of
people seeking access are formed. It takes weeks or even months for an
individual to get a written resolution on his/her case.
In order to ensure access to justice, a new body is being introduced into
the judicial system, namely magistrates. Federal Law “On Magistrates” was
enacted in 1998. However, the magistrate positions have not been completely manned in all Russian regions, and therefore their duties are performed by district courts, as it is in the city of Moscow. Slow staffing of
the magistrates hinders the effectiveness of district courts that, despite
their work overload, still take cases of magistrate competence. Additionally, it should be noted that magistrate positions are mainly staffed by
former police or other law enforcement officers. This does not facilitate the
independence and impartiality of magistrates, as their former professional
affiliations predetermine the mindset of the magistrate body in general.
Newly appointed magistrates may keep friendly relations with other fellow
law enforcement officers, and judge cases prepared by them. Moreover,
magistrates are able to independently judge criminal cases punishable by
up to five years in confinement.
114
Hereinafter the information on specific cases was collected by the Center for Assistance to
International Protection. For other details, see section on Article 9 of ICCPR in this report.
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As it was justly noted in the Fifth Periodical Report of the Russian Federation (Paragraph 105), the Russian population distrusts judiciary power.
However, contrary to what the RF Government maintains, in our opinion it
is unlikely that this distrust can be overcome by introducing magistrates or
by establishing courts of jury in all regions of the Russian Federation, as it
is expected that even once they are in place, this most democratic dispensation of justice will cover less than 1% of all criminal cases.
General Standards of Fair Trial
Rating the Admissibility of Evidence
With the operating Criminal Procedure Code an actual adversary procedure based on the equality of sides cannot be practically ensured. This is
predetermined by the imperfection and ambiguity of norms, as well as by
the lack of readiness on the part of the judicial community to change its
attitudes and eliminate the accusatory outlook, which has been dominating
theirs, their predecessors, and their mentors’ mindset for decades.
The idea of general justice in judiciary practices was supposed to be promoted by including in the RF Criminal Procedure Code the norms aimed
at ruling out inadmissible evidence, in particular, before the trial and
within the framework of the so-called preliminary hearing. These norms
were introduced in order to prevent the judges from being affected by inadmissible evidence and, thus, from making ungrounded decisions under
the influence of such evidence.
In reality, the judges deliberately ignore these new norms, saying that the
issue of excluding evidence will be considered during the trial of the case
or even as late as before the imposition of the sentence in the retiring
room. Such practices demonstrate either a complete misunderstanding or
ignorance of the norms aimed at ensuring that the entire variety of inadmissible evidence be removed from a lawsuit to preclude its impact on
judges.
For instance, in the spring of 2003, in the case of Ernan Okampo Himenes,
the defense prepared a detailed motion on excluding a number of documents as evidence in connection with various significant violations of procedural provisions. Judge E. Filippova of the Presnya intermunicipal district court of Moscow, however, issued a ruling where, in one phrase, the
entire motion was dismissed without specifying any motives or grounds.
Courts are not too inclined to exclude inadmissible evidence when imposing
a sentence. Specifically, in many cases the defense questions the admissibility of evidence such as the evidence of expert inquiries, the administration and performance of which violate the law. Courts ignore such circumstances and do not exclude the expert evidence mentioned above on such
grounds. In many instances, courts use the testimonies of the accused as
evidence, which, according to the accused, were extracted under psychological or physical pressure. Thus, forced self-incrimination often becomes
the ground for sentencing.
Independence of Courts
There are several aspects to the actual independence of courts. Russian law
provides for a number of guarantees for the financial independence of
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judges, in particular, by paying their salary from the federal budget. According to the Nizhnii Novgorod Society of Human Rights, judges’ salary
averages about 6 000 rubles (approximately $200); the salary of regional
court judges runs at 8 500—9 000 rubles (approximately $280—290). The
salary funding from the federal budget is not necessarily coming in full. In
Moscow, judges are granted additional allowance from the municipal
budget, thus making them dependant on Moscow authorities.
In addition, Russian legislation provides judges with a number of other
benefits and advantages like free municipal housing equipped with a telephone line, and places for children in preschool centers. In accordance with
Federal Law “On the Status of Judges,” one order of priority for local administration is their obligation to provide a judge with a comfortable apartment no later than six months from their commission into office. The apartment is to be provided at the expense of the local budget, with appropriate
reimbursement from the federal budget coming within six months. Yet,
sometimes the reimbursement from the federal budget fails to come. Therefore judges’ housing and wellbeing depend directly on local authorities,
making their independence from executive power dubious.
Funding of material supplies and facilities for courts comes, as a rule, from
the local budget too, which also makes them dependant on local authorities
in general.
Federal Law “On the Status of Judges” in Article 11.2 provides that federal judges shall be initially appointed for three years, and only upon completion of this term can the judge hold the office indefinitely. In practice it
means that during their first years in office judges are quite powerless, the
threat of being deprived of their status as a judge is constantly looming
over them, thus incapacitating them of making independent decisions, because after three years their status as judge could be denied without any
explanation or reason.
The order of distribution of cases in Russian courts is of a particular concern with regard to the principle of judicial impartiality. The distribution is
performed by the chairperson of the court, and depends solely on his/her
own discretion. There is no choosing by lots, waiting lists, or other conditions of random selection of judges. The requirement of drawing lots refers
to lay jurors only and is often violated, as seen by the decision of the
European Court of Human Rights on the Posokhov v. Russia case.
The aforementioned factors contribute to the existence of so-called “sponsored cases,” and the chairperson of the court has free hand to appoint
particular judges to work on particular cases. An institute of ‘dedicated’
judges exists off-the-record. For instance, Judge Kusnetsova and Judge
Komarova of Moscow city court take, as a rule, cases such as the incrimination of espionage and other lawsuits connected with state secrets, many
of which are investigated by the Federal Security Service (FSB). During
such trials, the so called “operational follow-up on the case” is performed,
which in fact means that FSB officers oversee order in the court room,
decide when hearings shall be held or postponed, regulate the access of
participants of the proceedings to the court room, and other issues of similar administrative importance.
All such trials take place in camera. Moreover, the judge refuses to allow
public hearings not only with regard to certain classified issues, but rather
the entire case is tried at chambers, including aspects such as a person’s
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character evidence, motions unrelated to state secrets but related to the
violation of the accused’s human and procedural rights. This often predetermines the verdict.
On Military Courts
From the standpoint of judiciary independence, the system of military justice, and court-martials in particular, are of special concern.
1. Double Subordination of the Bodies of Military Courts
Formally Article 5 of Federal Constitutional Law “On Military Courts” proclaims the ‘independence of military courts and military judges.’
However, Article 2 of Federal Constitutional Law enumerates all laws
regulating the performance of courts-martial on the territory of Russia —
and the list of these laws, as seen from Article 2, is not exhaustive.
It means that the activities of military courts, according to Article 2 of the
said law, as well as the status of judges in accordance with Article 26 of
the said law, can be regulated by an unlimited number of laws pertaining
to the regulation of Russian armed forces, including the Federal Law “On
Military Duty and Military Service,” which regulates the oath, chain of
command, and subordination. All servicemen are under the jurisdiction of
the RF Ministry of Defense.
Article 35.4 of the said law reads: “The judges of military courts and the
Military Judicial Assembly retain the status of servicemen, contracted for
military service…” With regard to the judges, the law uses such terminology as “servicemen, attached to military courts.” Moreover, the same Article 35 indicates that “…attachment of servicemen is performed upon a letter of proposal by the Chairman of the Supreme Court of the Russian
Federation.” However, it is unclear who actually exercises the attachment.
Besides, the military court of missile troops or the navy, for instance, are
established and function within their branch or armed service. In any case,
it affects their performance.
2. Double Financing and Social Security at the Expense
of the Military Establishment
Article 32.2 of Federal Constitutional Law “On Military Courts” reads:
Provision of military courts, the Military Judicial Assembly and relevant units of Judiciary Department by transportation, communication
means, military equipment, service quarters, their maintenance, operation and safety, as well as keeping archives is exercised by corresponding elements of the Armed Forces of the Russian Federation, other
troops, military formations and bodies, with actually performed expenditures covered by the Judiciary Department and the Supreme Court of
the Russian Federation.
The above norm means that the system of military courts is not separated from the armed forces, as the system exists and operates within
the frames of the entire structure of the armed forces of the country.
Therefore, the influence of the military establishment on the perform-
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ance of the military court system in organizational and administrative
fields is inevitable.
* * *
2. Everyone charged with a criminal offence shall have the right to be presumed
innocent until proven guilty according to law.
Public Statements of a Person’s Guilt in the Media
and Statements of Top Executives of the Country
The UN Human Rights Committee considered the case Gridin v. Russian
Federation (2000) and established that statements of Gridin’s guilt made by
the head of the Ministry of Internal Affairs before the court verdict, violated his right guaranteed by Paragraph 2, Article 14 of ICCPR. The
Committee referred to the General Comments, which recommend public
officials refrain from making early public announcements expressing confidence in a person’s guilt. The Russian Federation was recommended,
among other things, to submit information on what would be done to prevent such violations in future.
The decision of the UN Human Rights Committee on Gridin’s case has
never been followed, and Gridin’s precedent has been frequently replicated
by Russian authorities at different levels, including the top level.
On the case of V. Moiseev, who was accused of espionage, Vladimir Putin,
the then- director of FSB, publicly stated that Moiseev had committed an
act of treason in the form of espionage.115 Later, when the guilty verdict in
Moiseev’s case was pronounced, V. Putin was already President of the
Russian Federation.
Expression of Confidence in Someone’s Guilt
in Preliminary Court Decisions
Russian judges frequently neglect the presumption of innocence. For instance, Judge Bessarabova of the Kuntsevo intermunicipal district court of
Moscow has quite a peculiar understanding of the principle of the presumption of innocence. Even before Semion Akulinin et. al. case (2000) was
brought before court, she wrote in the admissibility decision that “the accused committed a grave crime.” It’s no wonder that several months later
the same judge pronounced a guilty verdict to all accused in the case. To
note, the court of higher instance, i. e., the Moscow city court, did not find
any breach of the presumption of innocence principle in Judge Bessarabova’s actions.
Place of the Accused in the Court Room
It must be noted that practically all criminal court rooms have specially
equipped spaces for the accused. The place is approximately three square
meters in size with seats fenced off from the rest of the room by a metal
grate. No wonder the place is conversationally referred to as “the cage” in .
Judges often insist that even those accused that are not supposed to be
apprehended still be placed in “the cage.” Placing the accused during hear115
Komsomolskaya Pravda (July 1999). For other details, see the section on Article 9 of ICCPR
in this report.
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ings into “the cage” is conducive to creating the perception that the accused is a guilty party well before the pronouncement of the verdict, as
the accused is already behind bars. Therefore, the existence of such
“cages” in court rooms significantly contradicts the principle of the presumption of innocence.
Presumption of Innocence and Burden of Proof.
Benefit of the Doubt
Presumption of innocence in Russia normally proves not to exist for rank
and file members of society. In practice, it is the accused individuals who
have to prove their innocence, but even if the accused and the defense
produce substantial evidence to support one’s innocence, judges often ignore or dismiss it by saying, for instance, that the court does not trust the
witnesses, as they are trying to help the accused avoid retribution for the
act committed (such as in the aforementioned R. Belevitsky’s case).
The principle of the presumption of innocence, on the other hand, implies
that the court shall interpret all unresolved doubts in the defendant’s
favor.
According to the new RF Criminal Procedure Code, in a number of instances the burden of evidence lies with the defendant. For example, the
“circumstances precluding offensive nature of and punishment for an act”
are subject to be proven. The defense has to timely submit the accused’s
(suspect’s) alibi to the prosecution in a timely fashion; otherwise, in the
course of the preliminary hearing the judge would object the motion of
calling such witnesses to court for questioning. The defense is allowed to
collect evidence; however, its inclusion in the case depends on the will of
the opposing side — investigation, prosecution. These officials, as well as
the police inquirers, in many cases, have no law degree, but are still entitled to arbitrarily declare the acquittal evidence legally void. This happens
when the same bodies deliberately or inadvertently breach the requirements of procedural legislation when collecting excusatory evidence. The
defender is not mentioned among persons authorized to check and evaluate
evidence.
The violation of the principle of placing the burden of proof on the prosecution is fully manifested in many cases, as human rights organizations report.
For example, the case of A. Namestnikov’s questionable evidence was
originally interpreted by the court in favor of the accused, and he was acquitted in 1999. Nevertheless, the acquitted and released Namestnikov was
arrested several months later, tried, and sentenced to seven years of confinement in 2000.
* * *
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands of
the nature and cause of the charge against him;
As it was noted in the sub-section of Paragraph 2, Article 9 of ICCPR,
many defendants are informed about all accusations against them only at
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the end of the preliminary accusation process, just as it was in the aforementioned cases of Ernan Okampo Himenes and Semion Akulinin.116
Also, the right to be informed of the accusation promptly and in detail is
granted not only to those in custody. The suspect or accused shall be informed in writing or orally of what they are accused, containing factual
circumstances of the cases and relevant provisions of law.
With regard to persons having no command of the language of the proceedings, frequent violations occur concerning the requirement that the accused
shall be informed “in a language which he understands.” This requirement
was breached, for instance, in cases against many foreign citizens: Nigerian
national A. M. (detained in 1997), British national K. H. (1997), Columbian
national Ernan Okampo Himenes (2001), US national H. (1997), and others.
(b) To have adequate time and facilities for the preparation of his defense and to
communicate with counsel of his own choosing;
This right is frequently violated due to the following:
1. The investigation prevents the defendant’s access to evidence during the
entire investigation; as a result the accused and his/her defense become
unarmed in front of the prosecution possessing the entire body of accusations. Such asymmetry in the rights of the defense and the prosecution is
provided by law: the Russian legislation ensures the access of the accused
to full evidence against him/her only at the stage of implementation of
Article 218 of the RF Criminal Procedure Code, that is upon the completion of preliminary investigation, which can last according to law for six,
12 or even 18 months.
2. The defense council’s access to his defendant, which is especially important at the initial stage of investigation, is often hindered by the fact that
the defense council still has no right to visit his/her defendant without
special permission from the investigation and court. Even the appropriate
decision of the RF Constitutional Court failed to put an end to this practice.
(c) To be tried without undue delay;
This right along with the right provided by Paragraph 3, Article 9 of
ICCPR ensures judgment without unjustified delay, and not only to the
confined. This right concerns the general duration of court proceedings,
including the out-of-court stage and trials by the court of original jurisdiction and cassation court, as well as all sorts of “re-investigations” and “reexaminations” until the final decision on the case is pronounced.
(d) To be tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have legal assistance,
of this right; and to have legal assistance assigned to him in any case where the
interests of justice so require, and without payment by him in any such case if he
does not have sufficient means to pay for it;
The violation of right to be tried in his presence is quite a rare phenomenon in the Russian Federation. Yet, it does occur in politically motivated
cases. An example of this is the case of A. Litvinenko (2002), a former FSB
officer, who made a headline-statement implicating the FSB in a number
of crimes. He was sentences in absentia by a military court of the NaroFominsk garrison to a prison term, and put on probation.
116
See also information on the case in the section on Article 9 of ICCPR in this report.
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(e) To examine, or have examined, the witnesses against him, and to obtain the
attendance and examination of witnesses on his behalf under the same conditions
as witnesses against him;
Complaints about the violation of this right are quite frequent, according
to the evidence provided by Russian human rights organizations. According to the earlier operating RSFSR Criminal Procedure Code, the prosecution would finish the accusatory conclusion (indictment) by providing a
“list of persons subject to be subpoenaed,” which the court would never
question. On the other hand, the defense motions on calling witnesses
would often be overruled, even if their testimony might have been of
significance to the case.
Violations related to the failure to provide equal conditions for the prosecution and defense with regard to questioning could be regarded as
breaches of the same category. Very often, persons are interrogated by the
prosecution during the preliminary investigation, giving the prosecution
the right to ask the person being interrogated any question, which could
ultimately either support or harm the testimony’s legitimacy. The defense,
though, is deprived of this right in all cases when the court, contrary to
the will of the defense, reads the testimony of a person interrogated during the preliminary investigation without summoning that person to court.
No objections of the defense are taken into account in such cases.
In spite of the fact that the new RF Criminal Procedure Code contains a direct prohibition of in-court readings of testimonies from witnesses not attending the hearings in person, courts nevertheless often make the decision
to disclose such evidence regardless of insistent protests from the defense.
(f) To have the free assistance of an interpreter if he cannot understand or speak
the language used in court;
The above right shall be ensured by not only having the interpreter attend
the proceedings, but also by the precise, adequate translation of the entire
litigation. In reality, though, translation is sometimes extended only to the
questions addressed to the accused. For instance, in the case of British citizen K. H. (1997) the verdict of the first instance court was annulled by the
Moscow city court due to bad translation and the judge’s inaction with regard to the violation of the right of the accused for adequate and complete
translation.
(g) Not to be compelled to testify against himself or to confess guilt.
Most self-incriminating evidence in Russia is extracted by torture or other
types of cruel treatment. In spite of the fact that such evidence should be
considered inadmissible in accordance with the new RF Criminal Procedure Code, judges often refuse to sustain motions on excluding evidence in
connection with torture during interrogation, and testimony obtained
through torture is considered admissible by the court.117
* * *
4. In the case of juvenile persons, the procedure shall be such as to take account of
their age and the desirability of promoting their rehabilitation.
117
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The Russian Federation lacks a system of juvenile justice, although the law
provides certain additional guarantees for minors, as well as mandatory
participation of a defense council and a qualified pedagogue during investigation. Nevertheless, the punitive nature of criminal judiciary in general
extends to proceedings involving minors.
Without sufficient grounds, minors often receive imprisonment terms,
while their correction could obviously be much more effective in the family, and their isolation from society is not necessitated. For instance,
S. Akulinin, who stole a car in collaboration with his friends, was sentenced
to three years of confinement, regardless of positive references from his
school and local community, a good family background, and the fact that
in three weeks he was to defend his thesis. In another case, Judge Afonina
of the Gagarin district court of Moscow sentenced two minors to two years
of imprisonment for stealing some cutlets and dumplings. The teenagers
were obviously undernourished. To note, the father of one of them was an
unemployed Chernobyl invalid, and his mother was dead.
* * *
6. When a person has been convicted of a criminal offence by a final decision, and
when his conviction has been subsequently reversed or he has been pardoned on the
ground that a new or newly discovered fact conslusively shows that there has been
a miscarriage of justice, the person who has suffered punishment as a result of such
conviction shall be compensated according to law, unless it is proven that the nondisclosure of the unknown fact in time is wholly or partly attributable to him.
Russian law provides guarantees of compensation to be paid in the case of
miscarriage of justice on the condition that the fact of miscarriage of justice
has been established in court. These guarantees are extremely rarely fulfilled for two chief reasons: (1) in Russia, there are virtually no acquittals; (2)
the existing procedure of terminating criminal cases on the so called “nonrehabilitating’ grounds,” is often used for the abatement of criminal action.
* * *
7. No one shall be liable to be tried or punished again for an offence for which he
has already been finally convicted or acquitted in accordance with the law and
penal procedure of each country.
The possibility of the reversal of a judgment, in particular the acquittal,
following a supervisory review on the officials’ initiative, has led to the
instability of judicial decisions, and the general violation of the right to fair
trial, in so much as one of the components of a fair trial is the stability of
the verdict pronounced. The parties to the proceedings always found
themselves at risk of cancellation of the previous court’s decision.
The acquittal cases continue to be reviewed following the prosecutor’s protests, regardless of the ruling by the RF Constitutional Court, which emphasized that the annulment of acquittals after the supervisory review following the prosecutor’s protest was inadmissible.
In the case against Radchikov, after a long deliberation an acquittal was
pronounced by the first instance court. It was also left in force by the
cassation court. However, a year later the prosecutor’s office made a request to review the acquittal, which then was annulled, and the case was
returned to court for new consideration.
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The arbitrariness of the state authorities with regard to the reversal of
court decisions is vividly manifested in the case of Chernobyl invalids. After the well known civil case of Burdov v. Russia, when the European
Court of Human Rights ruled that non-payment of disability compensation
to Burdov was a violation of his rights, numerous similar decisions by domestic courts in favor of applicants were quashed after the “supervisory
review.” It should further be noted that many participants in the elimination of the consequences of the Chernobyl nuclear power plant disaster fail
to receive their compensatory allowance, regardless the fact that their
right for compensation has been confirmed in court.
The notion of a fair trial includes the right of an implicated person — be it
a criminal or a civil case — to get a final verdict at a certain stage, which
can not be reversed under any circumstances. Such an approach lies in the
foundation of the legal stability of the state.
The above-mentioned cases represent a striking manifestation of the “instability of court decision,” which constitutes to breach Paragraph 7, Article 14 of ICCPR due to the incompatibility of such instability with a person’s right to a fair trial.
ARTICLE 17
1. No one shall be subjected to arbitrary or unlawful interference in his privacy,
family, home, or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or
attacks.
The right to non-interference in one’s private life (privacy) is supported in
the Russian Federation by the Constitution (Article 23), a number of international conventions, and by federal laws. The RF Criminal Code envisions
accountability for a breach of privacy, primarily through fines (Articles
137—138). The methods by which privacy is protected by the citizens
themselves are generally regulated by the RF Civil Code. Despite this, the
level of protection this right actually receives is not estimated to be high.
In the Russian Federation, and especially in Moscow, the illegal collecting
and distributing of information about private persons and organizations is
widely practiced. The most popular types of information include data on
the acquisition or sale of cars and their owners, the passport data of Russian citizens, the information of the Moscow Registration Chamber, data on
real estate (bought and sold apartments, their size, location and ownership
information), information from the Tax Service databases, and information
concerning persons who are wanted by the police or who have been found
guilty of crimes in court. Government bodies are the sources of this information. This data is illegally recorded on CDs and sold on the streets or
through the Internet. Yet, some databases, for instance information attained from the notebooks and finance papers of suspects confiscated by
police, are more rare. The cost of a database fluctuates from $10 to $1 500,
depending on the topic, size, accuracy, and date of information. Databases
on CDs are sold with a software shell that provides the opportunity for
search, processing, and analysis of information. Sellers often provide customers with regular updates.
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In February 2001, “Integrum-Tekhno,” a large commercial company specializing in computer technologies, was involved in an investigation concerning the publication of personal data on the Internet. Early in 2003, the
media covered the scandal concerning the break-up of the “Mobile Telesystems” database, a major cellular phones operator. The information of
the more than 3.5 million customers of the company, including their home
addresses, phones, and payments, was sold on CDs.
Special departments formed in the law enforcement bodies are responsible
for the detection of computer crime. However, we have not heard of any
cases where the supplier, the mediator, or the seller of such a database
was held accountable for the violation of privacy. The legal statute of a
database of personal data is not defined. Law enforcers do not feel that the
presence of guarantees against the interference with privacy in the RF
Constitution, or the principle of the direct action of the Constitution, are
sufficient grounds to open a criminal case.
Russian legislation concerning the protection of private data is far from
perfect. The basis for it is provided by the Federal Law adopted in 1995
entitled “On Information, the Provision of Information Systems, and the
Protection of Information.” Article 11 of the law contains some general
formulas concerning personal data. A list of personal data and the mode of
protection should, according to Articles 11 and 21, be established by federal law (“On Personal Data”). Yet even at present, no such law has been
adopted. Various bills were tabled in 1998 (authors: deputies O.Finko,
Yu.Nesterov, et al.) and in October 2000 (authors: deputies: K.Vetrov,
A.Shubin et al.), but the State Duma did not review these drafts.
The RF Civil Code refers to non-material benefits protected by law (Part
II, Article 150 of the RF Civil Code) in regards to the inviolability of privacy. These benefits include dignity, personal integrity, honour and good
name, business reputation, and private and family secrets. If a citizen suffers injury (physical or moral pain) from actions violating his or her individual non-property rights or infringing on other non-material benefits
that belong to the citizen and in other cases envisaged by the law, a court
may rule that the perpetrator of the injury provide monetary compensation for the injury inflicted (Article 151 of the RF Civil Code). However,
there is no information about the practice of suits of citizens that demand
compensation of injury inflicted by the publication of personal data in Russia. Observers explain this by the fact that the legislation on which the
suitor should rely concerning the protection of privacy is absent, and the
sums which Russian courts rule to be paid as compensation for injury are
usually small.
Article 13.11 of the new RF Administrative Code (which entered into force
July 1, 2002) also envisages accountability for a violation involving the “regime of collecting, storing, using and distributing information about citizens
(personal data).” But the Administrative Code reads that the above mentioned regime is to be defined by Federal Law “On Personal Data,” which
has not yet been adopted in Russia.
A separate law on the access to information for citizens is also absent. The
legislation contains a bewildering system of generally accessible information and “secret information.”
The secret of communication is guaranteed by Federal Law “On Communication.” The guarantees of privacy are also contained in Federal Law “On
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Operative-Investigative Activities in the Russian Federation.” Federal Security Service provides itself with the possibility to monitor communication
with the help of SORM (System of Operative Investigative Measures). After the implementation of the so-called SORM-1 in the telephone network
in 1994—1995, the same system (called SORM-2) covered the Internet in
1998. When this system is used, no statistics on the violation of human
rights is available; Federal Security Service representatives claim that
there are no such violations. Communications operators agree to the use of
SORM as a forced compromise. They have different views on the approach
to the inviolability of the privacy of their customers. Communications operators try to draw contracts with their customers in correspondence with
the demands of Russian legislation, with the expectations of special services and “competent organs,” with their own notions of security and confidentiality of data. If the operator does not agree with the implementation
of SORM at his/her communication node, this may cause hard pressure on
the part of the authorities (as was the case Volgograd with “Bayard-Slavia
Communications,” an Internet service provider).
Cases when perpetrators were held accountable for the violation of the
secret of correspondence, telephone talk or other kinds of communications
are rare.
The notion of “personal data” has appeared in Russian legislation recently.
Thus, the RF Tax Code (Part I of which was adopted in July 1998) refers
the surname, name, patronymic, date and place of birth, sex, place of residence, data concerning passport or other document that identifies personality of the tax payer, citizenship (Paragraph 1, Article 84) to personal
data. Articles 85—90 of the RF Labor Code (adopted in December 2001)
introduce restrictions on collecting data from the point of view of their size
and content. It establishes guarantees that the rights of employees are observed when their personal data is used or transferred, by having them
mandate the right to access, copying and correcting his or her personal
data, etc. One of the latest legislative initiatives includes a bill “On Communication.” Article 50 of the bill introduces guarantees of protection for
the data which the subscriber provides to the communications operator.
Information on subscribers (physical entities, though) are regarded as confidential, they cannot be included into any directories or information publications and cannot be used for information services without a written consent of the subscriber. The same conditions are determined for the phone
numbers of subscribers.
There are no special government structures protecting privacy (a commissar
or a commission on privacy/ personal data). The Presidential Court Chamber
for Information Disputes (the objective of this quasi-judicial body was to
protect the right of citizens to the inviolability of privacy) was dispersed by
a presidential decree in June 2000. Privacy is given little attention in the
work of the RF Ombudsman. As for public associations, none of them specialize in the protection of privacy. A few human rights organizations conduct, among other things, educational work in the sphere of privacy.
Thus, despite a number of positive changes that took place during recent
years, the level of the protection of privacy in the Russian Federation is
still rather low. There is a need for the legal education of citizens and public servants. It is necessary to gradually overcome the traditional neglect of
privacy and to develop a respectful attitude towards this fundamental human right.
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ARTICLE 18
1. Everyone shall have the right to freedom of thought, conscience, and religion.
This right shall include freedom to have or to adopt a religion or belief of his
choice, and freedom, either individually or in a community with others, or in public or private, to manifest his religion or belief in worship, observance, practice,
and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or
adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order,
health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the
liberty of parents and, when applicable, legal guardians to ensure the religious and
moral education of their children in conformity with their own convictions.
The enactment of the 1990 Law “On Freedom of Religion” in the Russian
Federation brought about an environment of unlimited religious pluralism.
In December of 1993, the main freedoms of conscience and religious pluralism were reaffirmed in the RF Constitution, which not only upheld the
principle of separation of church and state and the principle of the freedom of conscience, but also introduced the principle of equality among religious associations (Paragraph 2, Article 14).
At the same time, the rapid growth of new religious movements in Russia,
as well the increase in other known but previously very small religious organizations, became a source of concern among large groups of Russian
society, which, for various reasons, did not accept the spread of broad religious plurality. Since 1993, this concern has resulted in a series of attempts
to curb the freedoms related to individual and organized religious activities. Such attempts have been translated into relevant legal acts passed in
different regions of the country.
The new Federal Law “On Freedom of Conscience and Religious Associations” was adopted in 1997. Under this law, all religious denominations that
were not officially registered in Russia for a period of at least 15 years lost
the right to establish religious organizations, and thus could no longer be
involved in religious education, public preaching, economic activity, etc.
However, the strength of this powerful and discriminatory instrument was
largely undermined by the Ruling of the Constitutional Court dated November 23, 1999. It stated that the provisions of this law were not applicable to those denominations which had been registered in Russia prior to
the law’s enactment (the law, therefore, could not be used retroactively,
and practically all religious groups active in Russia today had been established in the country before 1997, and had had every opportunity to register before 1997 if they had wanted to).
The 1997 Law had superseded all regional legislation in this sphere, but in
reality not all the local statutes have been repealed. Moreover, some new
local statutes have been passed recently that touch upon the given field.
For example, a new Administrative Code was passed in the Belgorod region introducing a fine for “approaching individuals for the purpose of imposing religious beliefs on them,” although no such offence has been provided by federal legislation.
95
It can be maintained that the freedom of conscience (individual choice of
religious denomination, individual religious practices, etc.) has been recognized by and large in Russia. There have been no independent confirmations of the claims that members of individual confessions are discriminated against for their religious beliefs while applying for a job. There
have been no known cases of persecution of individuals who converted or
abandoned their religion altogether. However, it would not be true to state
that the right to realize the freedom of conscience in public, i. e., to establish and operate religious organizations, to preach and to teach religion, is
fully protected.
Many religious organizations have been forced to fight in court against local prosecutor’s office bodies that demand their liquidation. In some cases,
the prosecutor’s office even continues to demand that an organization be
liquidated on the grounds that it was not reregistered in 1999—2000 (reregistration of all existing religious organizations had been stipulated by
the 1997 Law “On Freedom of Conscience and Religious Associations”),118
although such action was specifically prohibited by the Constitutional
Court Ruling of February 7, 2002. Although the prosecutor’s office normally loses such cases in court, they nevertheless continue to file similar
suits, thus greatly impeding the activity of various religious organizations.
For example, a case concerning the liquidation of an organization of Jehovah’s Witnesses in Moscow has been in court since 1999, and the prosecutor’s office is not giving up.119 Also, in a handful of cases, the prosecutor’s
office has actually succeeded in liquidating a religious organization. The
most recent example is the March 2003 closure of a Pentecostal seminary
in Vladivostok on the ground that it did not have a license for educational
activities, although no such license is required for religious education.120
The most common type of arbitrary limitation placed on religious organizations is the active opposition from local authorities to the construction of
religious cult buildings. Muslims and Protestants encounter such difficulties
more frequently than other religious group. In practice, these impediments
vary from repeated delays that may last for years to outright refusal to
grant a construction permit. As a rule, such problems relate not only to the
position taken by officials, but also to protests from various population
groups and religious leaders representing the local religious majority (this
was the case, for example, during the construction of a Russian Orthodox
church building in the city of Naberezhny Chelny (Tatarstan Republic)121, a
mosque in the city of Sergiyev Posad (Moscow region), and a RomanCatholic cathedral in Pskov). The fact that such decisions are in conflict
with the law does not stop the officials. In April 2003, the Mayor of Yuzhno-Sakhalinsk, F. Sidorenko, in gross violation of the regional court decision, prohibited the construction of a Jehovah’s Witnesses’ praying house,
took over the building, and make it municipal property.122
118
See, for example: “Moscow Department of Justice Tries to Liquidate the Kingdom of God,”
News.Ru, July 19, 2002. (http://www.newsru.com/religy/ 19Jul2002/gottesreich_mow_print. html).
119
For more details, see the web site of Jehovah's Witnesses: http://www.jw-media.org/region/ europe/russia/nav/trial.htm.
120
G. Fagan, “Court Closes down Bible College.” Forum 18 News Service (http://www.forum18.org/Archive.php?article_id=35).
121
Islam is the dominant religion in Tatarstan.
122
From a “Sakhalin-Kurily” TV program newscast, April 16, 2003 (http://www.gtrk.ru/
news/0416/print/news03.htm).
96
There have been a number of registered cases when local authorities have
attempted to prevent the preaching of religious beliefs and the distribution
of printed materials of religious organizations. For example, in 2001 the
head of the Department for Penalty Execution in the Penza region prohibited the “Living Faith” Pentecostal church from distributing religious materials in local penitentiaries. It is noteworthy that the prohibition was justified by a corresponding “recommendation” from “people in the Governor’s circle.” Following this incident, the distribution of the “Living Faith”
Pentecostal Church’s newsletter became hampered throughout the Penza
region as police started detaining the newsletter distributors.123
There is no evidence that such unlawful acts are of a systematic nature.
However, from time to time, the discriminatory attitude of local authorities
towards individual confessions can take the form of a campaign, and thus
become quite dangerous. In the town of Chekhov, Moscow region, the head
of local administration prohibited the showing of the film “Jesus,” arranged by the organizational committee of Christian Evangelic Churches,
claiming that the film promoted “an alien, non-orthodox religion” (this
film’s showing was also prohibited in some other towns). On top of that,
the preaching house of the Evangelic Christians was set on fire and the
lease agreement for the premises was revoked. A priest of one of the congregations was repeatedly beaten. All these actions combined made it impossible for the local congregation to continue their religious practices as a
group. This case also exemplifies a situation where unlawful acts towards
spiritual leaders are not being carefully investigated by the authorities,
which indirectly encourages such forces in society to put their religious
prejudices into practice.124
The above mentioned problems are most frequently encountered by religious
organizations, whose staff and spiritual leaders are foreigners. These people
are often expelled from the country or denied entry visas without proper
justification. During the period of 1998—2002, such instances arose in relation to Buddhists, Evangelic Christians, Mormons, adherents of the “Christ’s
Church,” and other denominations. It is noteworthy that in 2002, the Roman-Catholics were affected by these practice more than other group: five
priests, including a bishop, were expelled from the country. Since the beginning of 2003, the situation with such religious organizations has become further complicated as a result of the introduction of a complex mechanism for
obtaining a residence permit under the new Federal Law “On the Legal
Status of Foreign Nationals.” A Roman-Catholic priest and a rabbi have
been already expelled from Russia in 2003 under this law.
In some cases, the mounting pressure on religious organizations is being
justified by the fight against terrorism. Most frequently, such arguments
can be heard from Muslim spiritual departments, which are largely intolerant towards each other and towards Muslim communities that are not
part of such an organizational structure. It can not be precluded that some
of the Muslim communities are not involved in anti-constitutional activities, but more often than not authorities’ suspicions of this nature remain
unfounded. The resulting actions, though, create severe impediments for
religious activities: searches, seizures of literature, prohibition of commu123
S. Lukashevsky, “Freedom of Convictions, Conscience and Religion,” Human Rights in Russian Regions — 2001 (Moscow: Moscow Helsinki Group, 2002).
124
Ibid.
97
nity prayers, etc.125 In 2000, in the Republic of Dagestan, the local authorities fighting against Islamic extremism imposed a legal ban on Wahhabism,
a branch of Islam, and introduced religious censorship.
The threat of terrorism is often confused with a threat to cultural and religious identity, which is perceived to come primarily from abroad. This
threat is actually mentioned in the 2000 Concept of the RF National Security
as well as in the RF Informational Security Doctrine. A corresponding term
— “spiritual security” — has already become part of the official lexicon, and
is being eagerly used by high-ranking officials and political leaders.
During the mid-1990s, only new religious movements, called “totalitarian
sects,” were perceived as a source of threat. However, no definition of such
dangerous groups was ever suggested, while the list of such groups was continuously expanding. As a result of this trend, in the last couple of years
some high-ranking officials, including The President’s plenipotentiaries in
several of federal districts, repeatedly stated the need to legally ensure the
privileged status of the so-called “traditional religious organizations,” which
are the seven largest associations of Christians, Muslims, Buddhists and
Judaists. A link is being made between religion and ethnicity, which is then
being used to justify the dominating position of religious organizations from
the “titular ethnic group” in a particular region.126 This trend has not yet
been incorporated in any legal statutes (although draft laws to this effect
already exist). However, at the regional level, governors and local authorities
are often guided by ideological considerations when they allocate funds exclusively to “traditional” religious organizations, or seek their approval when
dealing with other religious sects. In addition to the so-called “new religious
movements,” the list of denominations subject to severe administrative pressure includes Pentecostals and, since 2002, the Roman Catholics.
Imparting a privileged status to “traditional religions” creates a disturbing
situation in the sphere of the state run system of secondary school education. Since the late 90s, many regions have introduced basic courses on
Russian Orthodox Christianity or Islam as special subjects, depending on
the “titular ethnic group” in a particular region. In 2002, the Ministry of
Education decided to expand this practice to the rest of the country, and
has been working in this direction since then. Although attendance in such
classes is voluntary, in practice this principle may be violated, which would
violate the legally fixed secular nature of the state-run education system.
ARTICLE 19127
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include
the freedom to seek, receive, and impart information and ideas of all kinds, re125
For more information about the pressure on Muslims in the city of Ekaterinburg in autumn 2002 — spring 2003, check the website “Religion in a Secular Society” at http://religion.sova-center.ru/events/13B74CE/1444B24/14B0714.
126
For more information on this see: A. Verkhovsky, “The Place of Xenophobia in Government Policies,” Nationalism, Xenophobia and Intolerance in Contemporary Russia (Moscow:
Moscow Helsinki Group, 2002).
127
For this section of the report, the freedom of speech monitoring findings were used, the
continuous monitoring effort being run by the Glasnost Defense Foundation.
98
gardless of frontiers, either orally, in writing or in print, in the form of art, or
through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries
with it special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (order public), or of
public health or morals.
The period of 2000—2003 has seen a radical upsurge in the level of pressure put on print and broadcast media by local administration. At the same
time, relevant legislation is being incessantly revisited, which obviously
only serves to sow the seeds of chaos in the public information arena. The
debates regarding adoption of a new federal law on the media continue
unabated for a second year running. Journalistic pursuits have been increasingly regulated by laws that do not bear directly on the press or, in a
more general sense, on the information arena. Such laws include the Informational Security Doctrine, certain articles of the newly adopted
RF Civil Code, Federal Law “On Licensing Selected Activities,” Federal
Law “On Banning Propaganda of Narcotics,” etc.
Under the given circumstances, the economic health of regional press and
broadcast media operations, as well as their very survival in light of the
ongoing confrontations with the relevant federal holdings, has been increasingly predicated upon the political leanings of individual mass media
activities. The more loyal operators enjoy a better chance of staying afloat
than the opposition-geared vehicles, to say nothing of the politically neutral outlets (the factor explaining why these latter media operations have
been struggling to survive in the immature market for advertising services
is their reluctance to become politically engaged).
In addition, Russian regions have now and again seen assorted cases of
threats and criminal violence with regard to journalists and mass media.
Every year, anywhere from fifteen to twenty journalists perish across the
Russian Federation, with the relevant circumstances being inadequately
investigated. The substantive evidence to this end has been provided by
our own independent inquiry into pertinent facts surrounding the deaths
of the Togliatti-based “Lada-TV” executives and chief editors of the Kasimov-based Meshcherskaya Nov and Moskovsky Komsomolets in Smolensk
newspapers. Also, since April of 2000, no definitive results have been secured by official investigators looking into the cases of three Russian reporters from the Tula, Kemerovo, and Kirov regions that disappeared
without a trace.
Notably, today about 80% of all Russian mass media outlets are either federal or municipal properties, bringing them under the authorities’ control
to various degrees. The aforementioned factors have been telling not only
of the quality of Russian journalism. The readership appears to be devoid
of any opportunity to gain access to the full spectrum of public information, with the engaged press operators known to be variously distorting the
available information flows. Conversely, the media vehicles, unwilling to be
engaged by the authorities, have to work very hard to keep balance and
carry unbiased, critical material, and avoid being targeted by the relevant
bodies of administration.
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* * *
On September 9, 2000, President Putin signed the Informational Security
Doctrine aimed at governing relationships within the confines of the Russian information arena, ensuring information support for Russian governmental policies and providing for supervision of the existing information
flows. Let’s not forget that in August 2000, President Putin characterized
the information arena as a “strategic sector directly bearing on matters of
state security.” Basically, he equated generic information material with
classified defense developments and strategic resources held exclusively by
the Russian Federation. Hence, the President of Russia explicitly suggested
that the information arena should be under governmental control.
By way of example, in a number of Russian regions local administrators
have begun to apply the Informational Security Doctrine as some sort of
“guidance tool” to justify their arbitrary actions with regard to the local
independent media vehicles, referring to the doctrinal rules designed to
“regulate” information flows.
In particular, in the spring of 2001, nearly two dozens of the Penza regional administration officials (ranging from vice-governors to bureaucrats
one rung down) moved to sue four local newspapers, the sought damages
being calculated in the millions of rubles. Asked by baffled journalists
about the rationale for free-wheeling media operators being incrementally
phased out, the regional officials pointed out that they had been guided by
the Informational Security Doctrine, rather than by desires of self-interest.
To emphasize, the aforementioned Doctrine is not a legislative document
binding on government officials.
According to the Glasnost Defense Foundation (GDF), which has been tracking the relevant developments for three years, the Informational Security
Doctrine represents a basis for introducing anti-democratic amendments into
Federal Law “On Mass Media.” To be blunt, the Doctrine actually serves to
empower authorities and simultaneously subdue reporters. The document’s
ambiguous language conceals quite concrete punitive options.
* * *
To minimize opposition from mass media, the authorities started to broadly
resort to the services of the Federal Security Service (FSB), courts, and,
primarily, prosecutors. Thus, the year 2000 saw the launch of the unprecedented “Media-Most” holding case. In the summer of 2000, after the Versiya newspaper ran a string of articles on the sinking of the “Kursk” submarine, the FSB started to put pressures on the periodical’s editors. FSB
investigators had four Versiya journalists and a lawyer from Sovershenno
Sekretno repeatedly summoned for interrogations that lasted for hours, to
say nothing of the fact that the newspaper’s PC containing all their journalistic data was removed. Importantly, attempts had been made to cajole
the reporters into disclosing their sources, despite the fact that under
Paragraph 4, Article 49 of Federal Law “On the Mass Media” a reporter
has to keep his sources confidential. Thus, representatives of state enforcement structures were essentially pressing the journalists to breach the
applicable mass media legislation.
Courts and prosecutors continued to relentlessly pressure the federal level
media and journalists in 2001. The primary target this time was the “TV100
6” television company (MNVK — Moscow-Based Independent Broadcaster).
On the regional level, among the most infamous conflicts triggered by the
direct involvement of local prosecutors and courts were those in Lipetsk
and Voronezh, the key targets being the TVK and GTRK “Voronezh” television companies accordingly. Interestingly enough, the FSB Chairman,
General Patrushev, won two court cases against the Noviye Izvestiya
newspaper and reporters V. Yakov and V. Chesnokov (the former of the
two cases initiated in October 2000 and the latter in August 2001). To point
out, no previous head of FSB is known to have been personally involved in
litigation with journalists.
Over the past three years, the total of actions filed against mass media operations has significantly increased, which likewise indirectly evidences
pressures on the media.
* * *
Interference in the work of Western reporters and publishers with major
foreign participation in the charter capital is becoming steadily more frequent. By way of example, in December 2000, A. Streltsov, head of information security from the office of the RF Security Council, and M. Lesin, Minister of the Press, publicly appeared to suggest that Russia is committed to
standing up and protecting its information market against foreign mass media activities, ultimately limiting Western media and reporters’ access to information in the territory of the country in order to do so.
For example, in March 2000, the “Voice of America” radio broadcasting
company happened to be denied its request for a license to operate in Volgograd and Ufa. M. Seslavinsky, Deputy Minister of the Press, came to insist that the license request was denied by the Federal Tender Commission, which is authorized to consider all matters related to granting licenses
for the use of assigned federal frequencies within the Russian Federation.
Although the “Voice of America” company had no competitor also seeking
permission to operate in Russia on the same frequency, the Federal Tender
Commission ruled to reject “Voice of America’s” application, and pronounced the proposed broadcasting concept as “lacking promise to help
reinforce the sector.”
After the “Radio Liberty” (RFE/RL) company moved to reveal its plans to
start broadcasting in the languages of ethnic communities populating the
North Caucasus, the Minister of the Press, M. Lesin, who had earlier critiqued “Radio Liberty” on a number of occasions, issued a “non-official
warning” to the company’s management to the effect that, should the
scheduled operations become a reality, “Radio Liberty” would be barred
from operation in Russia. Commenting on the possibility of “Radio Liberty”
to broadcast in the North Caucasus, A. Zdanovich, official FSB spokesman,
said, “Should “Radio Liberty” open a Chechen service, we would not just
sit back and look on. FSB would counter whatever comes against Russian
state interests.”
Another notable cause for concern is the Russian President’s recent decision to place constraints on the rights of foreign publishers and founders of
mass media publications. On January 30, 2003, President Putin dispatched
a letter to S. Mironov, Chair of the Federation Council, and G. Seleznev,
Chair of the State Duma, stating that the head of state had decided to
turn down the amendments to the existing Federal Law “On the Mass Me101
dia” passed by the State Duma on December 20, 2001, and endorsed by
the Federation Council on December 26, 2006. The amendments were intended to enable foreign outlets and their Russian-based subsidiaries to
keep holding their television companies, as long as they had been founded
in Russia before August 2001.
The problem was that the original constraints had been made applicable to
any and all television company founders, the time of founding making little
difference. Subsequently, some State Duma member-deputies moved to
place no such constraints (established in 2001) on either the founders of television companies that had registered their Russian-based operations prior to
the aforementioned date, or on the organizations that had been established
or engaged to launch television broadcasting operations before the said constraints were enacted. However, President Putin thought that this “might
have the interested parties unequally advantaged when it comes to relationships emerging in connection with mass media operations being founded at
different times. As a consequence, those relationships could not be governed
through the use of a general set of legal rules. Obstacles would emerge to
counter the Government seeking to implement its commitment to create and
safeguard the single economic arena and common marketplace, including an
information market that leans on mass media.”
* * *
According to the monitoring findings of the Glasnost Defense Foundation
(GDF), up until the spring of 2000, Russian mass media workers were reported missing exclusively in territories of military action, such as Abkhasia and Chechnya. Since April of 2000, however, the GDF monitors have
registered four cases of reporters disappearing without any trace under
peacetime conditions.
In spring of 2000, S. Panarin, correspondent for the Shabalinsky Kray newspaper from the town of Shabalino in the Kirov region, disappeared from
public view. On April 13, 2001, S. Korabelnikov, a cameraman for the local
“Channel 51” television company in Tula, was reported missing under uncertain circumstances. May 17, 2001 saw the disappearance of V. Kirsanov, editor of the Kourganskiye Vesti newspaper. On December 20, 2001, the
Smolensk regional police department ordered a search for S. Kalinovsky,
editor-in-chief of the Moskovsky Komsomolets newspaper in Smolensk, the
man’s dead body eventually being uncovered in the spring of 2002.
On April 13, 2003, the Sovetsky district prosecutor’s office in the city of
Tula launched a search for A. Vorobyev, general director of the region’s
largest cable television network “Altair,” who was last seen at a parking
lot near his own apartment building.
Furthermore, GDF has conducted a series of investigations to look into all
of the said cases of reporter disappearance. Though the accumulated evidence has been submitted to the relevant prosecutors at the RF Prosecutor
General’s Office, none of the cases (including the case related to the death
of S. Kalinovsky) has been investigated consistently and effectively enough
to produce any meaningful results.
102
* * *
In spring of 2001, Russian law enforcers developed and started to apply a
new strategy for pressuring assorted mass media operations through the
use of advanced technology. The most common approach runs as follows: a
newspaper’s editorial office is visited by a team of police officers and
prosecutors wishing to examine the local CD-carried materials and inspect
numerous other things. Should the inspectors believe that any given software application is a counterfeit product, it is immediately confiscated
along with the hardware, the relevant removal statement generally featuring the following words: “the unidentified CD-carried software application
has been removed.” Notwithstanding the fact that the withdrawn software
product could very well a legitimate item, under such circumstances it gets
carried away anyway.
July 3, 2001, a batch of policemen unexpectedly descended upon the editorial offices of the Kovrovskiye Vesti Daily (Kovrov, Vladimir region). As
they displayed their prosecutor-signed search warrant to the daily’s editor-in-chief N. Frolov, the law enforcers ran a four-hour-long hunt for
counterfeit products. Though N. Frolov tried to convince the detectives
that he carried no counterfeit software applications banned for circulation
in the Russian Federation and that the editors had exclusively used fully
licensed products, the policemen persisted with their search effort. Following that “raid,” the local newspaper editors had seven PCs removed, which
effectively disrupted the newspaper’s operation.
Such “hunts” with subsequent “removal” of firmware discs holding confidential information also have been performed in Vladimir (on two occasions), Ivanovo, Yaroslavl, Saratov and Oryol. Interestingly enough, in none
of the cases was any proof of the use counterfeit software applications presented.
In 2001, the GDF monitors came to record a growing numbers of criminal
cases opened against mass media workers, the disparate grounds for which
ranging from corruption to extortion. To note, one such case was recently
completed, the prosecution having lost. In January 2002, A. Postnov, Kazanbased correspondent for the Moscow-based Express-Khronika human rights
newspaper, was apprehended on suspicion of his approaching Ya. Margoulis,
managing director of the state-run unitary enterprise “Medical Supplies and
Pharmaseuticals of Tatarstan” (“Tattekhmedfarm”), and a kickback in the
amount of $1 000 was demanded. A. Postnov was found not guilty, the
charges brought against him by the prosecution falling into pieces during
the court proceedings. Notably, similar cases have come to pass elsewhere
across the Russian Federation. On December 4, 2001, the prosecutors from
the city of Murmansk had two chief editors from different local newspapers
(V. Shkoda from the Komsomolskaya Pravda — Arktika newspaper, and Sh.
Amrakhanov from the Severo-Zapad Daily) charged with extortion (Article
163 of the RF Criminal Code). The staff of the Komsomolskaya Pravda —
Arktika firmly maintains that the move to detain Shkoda and Amrakhanov
was a politically motivated action, the entire point of the staged affair being
to intimidate the Murmansk mass media community. September 2001 saw
the detention of A. Karasev, host of the “Regional Interest” program on the
“TV-6 Tver” television network. In October of the same year Yu. Gorbanev,
editor from the Nizhnii Novgorod-based Soldat Udachi newspaper, was
taken into custody on a similar charge. The local courts have yet to pass
judgment on these cases.
103
* * *
To point out, Russian authorities have been attempting to put constraints
on journalistic pursuits, particularly when it comes to coverage of highprofile matters such as operations run by special forces to release hostages,
etc. Following a large number of people being taken hostage at the Moscow-based Dubrovka theater center (October 23—26, 2003), numerous
glitches and miscalculations in the arrangement and execution of the hostage-release operation were revealed through the focused efforts undertaken by the media, who kept track of the situation’s developments on a
continuous basis. This resulted in the authorities wanting to protect themselves against the risk of such exposure in the years ahead. Immediately
following the terrorist action, the State Duma proposed a pro-government
motion to appropriately amend the applicable counter-terrorism and mass
media laws, the relevant changes primarily aimed at placing constraints on
the freedom of speech under conditions in which counter-terrorist operations are being run. In particular, it was suggested that the counter-terror
legislation be amended to include certain rules designed to expand the array of constraints to bar either the promotion or justification of terrorist or
extremist actions in the mass media and other sources of information, including reports that “serve to bolster either the promotion or justification
of extremist activities or carry some statements or pronouncements aimed
to hamper the use of counter-terror operations, back up the propaganda
and/or justification of actions to oppose the idea of counter-terrorist operations.” Clearly, the implications of such an amendment would be broader
than they seem to be at first glance: it should be remembered that the ongoing war in Chechnya is officially viewed as a counter-terrorist operation
pursued on the basis of relevant legislation. Should such an amendment be
enacted, any attempt to launch and run a full-fledged public debate in the
media on the Chechen issue would be unlawful for all practical purposes.
Though the proposed amendment was rather speedily approved by the
State Duma and the Federation Council, the RF President (apparently
having come to the realization that the adopted legislation would look quite
odious) responded to an outcry from the bigger media operators (government-run ones included) and turned down the amendments. Yet, it should
be pointed out that the amendment has not been totally abandoned. The
proposed alterations have been sent down to a conference commission, so
at this point in time it appears to be rather difficult to conclude with any
degree of certainty whether the amendment could be passed after all, or if
it will continue to be a sword of Damocles for the Russian mass media.
Anyway, the media executives promised the RF President that they would
draft a set of self-regulation tools to appropriately govern the coverage of
terrorist acts in progress. It should be emphasized that although we tend to
back up the self-regulation initiatives emanating from the journalistic
community, in this particular case the desired consensus from the media
community was actually achieved through a sequence of blackmail moves.
* * *
Thus, the last three years have seen a global shift in policies and priorities
maintained by Russian authorities with regard to shaping the local information arena and regulating mass media operations, the main trends running as follows:
104
1.
2.
3.
4.
Maximized government influence on the media is pursued, and a variety
of measures are introduced to oversee independent media activities, particularly national television networks. The more influential non-governmental media holdings and media operations are being phased out.
Pursuant to the stated “administrative vertical” policy goal, efforts
have been under way to organize regional media operators into media
holdings reporting either directly to plenipotentiary presidential representatives in the federal administrative districts, or being variously supervised by local agents from the Presidential Administration. Of late,
there has been a clearly defined trend reflective of the authorities’ desire to “compact” the current information arena in the Russian Federation by way of enabling the larger media holdings (that are manageable and loyal to the current executive power) to reach out into the
provinces, leaving the less malleable local media operators to be incrementally eliminated.
The Informational Security Doctrine is introduced as a guideline
document designed to assure the subsequent alteration of the applicable media legislation, and as a sort of “testing ground” intended to
prove the effectiveness of the measures to oversee the information
flow in general, and media operations in particular.
The Russian journalistic community is divided and scattered: a new
double of the Russian Union of Journalists — “Media Soyuz” — has
been established; 10% VAT for media activities has been introduced to
enable the larger and prosperous media structures to reach into the
provinces, thereby phasing out local media operators lacking the proper
resources to effectively compete against national media companies; etc.
ARTICLE 20
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial, or religious hatred that constitutes incitement
to discrimination, hostility, or violence shall be prohibited by law.
The actions envisaged by Paragraph 1, Article 20 of ICCPR have not been
registered recently, so it was not possible to test the actual efficiency of
the corresponding bans contained in the RF Criminal Code.
At the same time, racist propaganda in every form is still an extremely
urgent problem in the Russian Federation. There are many publications
and periodicals promoting ethnic and religious hostility. Many racist organizations are functioning in the country. The largest of them, Russian
National Unity (RNE), broke up at the end of 2000, but its numerous
fragments, which suffered considerable losses in their common membership, have become extremely active again in 2002. Also, new organizations
of this sort are emerging.
Race-motivated violence is an important problem. The number of violent
acts on the part of the Cossack units has gone down recently. At the same
time, the number of skinhead gangs is growing rapidly, and, correspondingly, so is the number of attacks on “visual minorities” (Caucasians, Central Asians, Roma, Africans). Attacks on Jews are not frequent, but attempts to destroy and defame synagogues and other Jewish buildings or
cemeteries happen quite often.
105
According to the Ministry of Internal Affairs, there are about 15,000 skinheads in Russia,128 but, taking into consideration the conventional nature of
these estimates, this seems to be the minimum number. During certain
months of 2002, reports about grave skinhead attacks came in almost
every day; by the end of 2003, the number of these reports had gone down
somewhat.
The formula of Paragraph 2, Article 20 of ICCPR does not have an exact
analogy in Russian legislation. The RF Constitution bans “Propaganda or
campaigning inciting social, racial, national, or religious hatred and strife”
and “propaganda of social, racial, national, religious, or language superiority” (Paragraph 2, Article 29). It also puts a ban on the creation and activity of associations whose objectives and actions are aimed at “the incitement of social, racial, national and religious strife…” (Paragraph 5, Article
13). It seems that the constitutional ban has a wider formula, and is less
operational than its ICCPR counterpart.
With inconsiderable variations before 2002, the aforementioned constitutional formulas were also found in the laws “On Public Associations” (Article 16), “On the Freedom of Conscience and Religious Associations” (Article
14), “On Mass Media” (Article 4), and in all laws on elections. The violation
of this ban could lead — after formal warnings — to the liquidation of an
organization or to the closure of a media body. As far as journalists are
concerned, Federal Law “On Mass Media” also introduced a ban on “distributing information aimed at slandering a citizen or separate categories
of citizens for their race or nationality, their language, their attitude to
religion” (Article 51). Federal Law “On Political Parties,” which was
adopted later than other laws (in July 2001), envisaged additional restrictions: it banned the use of the name or of the symbol of a party “insulting
race, national, and religious feelings” (Paragraph 5, Article 6 and Paragraph 3, Article 7, respectively).
When Federal Law “On Countering Extremist Activity” was adopted in the
summer 2002, amendments were made to the above mentioned laws,
which substantially widened the formula of the ban. As a matter of fact,
Article 1 of Federal Law “On Countering Extremist Activity” gives a very
broad definition of “extremist activity.” It covers a number of actions ranging from terrorist activities to “humiliating ethnic dignity” and “promoting
uniqueness, superiority, or deficiency of citizens on their attitude to religion, their social, race, ethnic, religious, and social affiliation.” Since Federal
Law “On Countering Extremist Activity” has no limitations or more precise
definitions concerning the seriousness of a criminal offense, most human
rights activists and experts agree that the definition provided by said law
gives excessively obscure formulas of the bans.
As far as countering extremism is concerned, the new legislation does not
distinguish between various forms of “extremist activity.” Thus, both obviously extremely dangerous actions and minor manifestations of intolerance
(politically incorrect statements, publications, etc.) may result in grave persecution. Amendments to the laws “On Public Associations,” “On the Freedom of Conscience and Religious Associations,” “On Mass Media,” and “On
Political Parties” have replaced bans of concrete content (see above) with a
general ban on “extremist activity.” Thus, bans associated with Article 20
128
“Skinheads Have Adopted Accurate Hits Tactics,” Lenta.Ru (February 4, 2003).
106
of ICCPR now have much wider formulas in these laws than in ICCPR,
making the enforcement of these laws more difficult.129
Since spring of 2002, constitutional bans have been more actively implemented by the authorities in respect to racist organizations and publications. During the first seven months of 2002, the newspapers Russkyi
Khozyain, Russkiye Vedomosti, Limonka, which actively promoted racist
views, were closed. A number of other periodicals received official warnings. Six regional branches of the Russian National Unity were liquidated.130
The fact that after July 30, 2002, i. e., after Federal Law “On Countering
Extremist Activity” went into force, legislation became more severe, did
not enhance the work against extremism, but rather vice versa. Since that
time, only one liquidation of a Russian National Unity branch has been reported, and no racist periodicals have been closed since August 2002.131 The
only notable step in this field was the RF Ministry of Justice’s deregistration of the new big, racist party, the National Imperial Party of
Russia, which had been created and registered in September 2002. To note,
the party’s registration was annulled under formal pretexts only due to
powerful public pressure, and only in May of 2003.
Measures of criminal persecution against especially dangerous racist propaganda are reflected not only in Article 282 of the RF Criminal Code (“Incitement to ethnic, or religious strife,” which mandates punishments ranging
from a fine to five years of imprisonment) and Article 63.e, which establishes
the racist motive as an aggravating circumstance. The racist motive serves
as a qualifier in five articles of the Criminal Code (murder, intended infliction of grave or medium harm to health, torture, and defamation of tombs),
but not in other violent crimes. It is usually believed that racially-motivated
violence is only one of the dispositions of Article 282, and the formulation of
it in the Criminal Code is not clear: according to Paragraph 2.a of Article
282, the threat of violence, or the use thereof, qualifies as racist propaganda,
although this is seldom applied to racist attacks.
In 2002, the enforcement of Article 282 was intensified: 71 cases were
opened, 31 charges were brought, and 16 persons were convicted132 (to
compare with 17, eight, and ten in 2000, respectively133). However, punishments were still too light (convictions were usually probational) and infrequent. This came not due to the deficiency of the Criminal Code formulas
themselves, but rather due to the absence of official comments to help distinguish between criminal offenses and not so dangerous manifestations of
intolerance, the absence of persistent motivation on the part of political
leadership, and as a result of the widespread sympathy among law enforcement officers towards racists’ objectives or even means. We should
129
The most extensive and detailed criticism of new laws can be found in: A.Verkhovsky,
Government Against Radical Nationalism. What Is to Be Done, and What Is Not to Be Done?
(Moscow: Panorama, 2002); also see: L. Levinson, “Extremism Will Be Fought in Stalin’s Way.”
Russian Bulletin on Human Rights ( #16, 2002).
130
Human Rights in Russian Regions —2002 (Moscow: Moscow Helsinki Group, 2003).
131
A more detailed review of the enforcement of new legislation in August 2002 — February
2003 can be found in: A. Verkhovsky, “Half a Year of Countering,” Russian Bulletin on Human Rights (#17, 2003).
132
“Skinheads Have Adopted Accurate Hits Tactics.” Lenta.Ru (February 4, 2003).
133
“On the Observance by the Russian Federation of CERD.” Alternative Report of Russian
NGO (Moscow: 2002).
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also note that Article 282 is almost always covered by amnesty, which
saves most convicted racists from punishment.
As concerns Article 63.e, cases where this norm was enforced are not
known to us. Generally speaking, in almost all cases where violent crimes
motivated by race are detected, law enforcement bodies either shun any
proof that a racist motive is present, or simply fail to prove its presence.
This even happened in November and December 2002 when judgment was
passed regarding skinheads’ most infamous and cruel crimes involving
murder — the riots at the Moscow Tsaritsyno market, and the murders of
Roma people in Volgograd.134 As far as numerous attacks on representatives
of “visual minorities” are concerned, top-ranking police officers claim, as a
rule, that they do not see racist motivation in these attacks.135 And when a
poster with the words “Death to Kikes!” was rigged with explosives not
far from Moscow, and blew up on the side of the Kievskoe highway seriously injuring a woman (May 27, 2002), a top-ranking policeman said:
It is a disputable thing whether setting up such poster is an offense. I
believe that from the formal point of view the slogan “Death to Kikes!”
does not constitute incitement to ethnic strife. Everybody can be called a
Kike [the equivalent of this word is also used to denote a scrooge] here.136
In this last case, just as in the cases of most other violent racist crimes, the
perpetrators were not found.
Passivity on the part of the authorities in the face of clear-cut racist riots
cannot but cause concern. Thus, on July 7, 2002, Armenians were attacked
in Krasnoarmeysk, Moscow region. A few days later, local residents and
visiting activists created a racist Movement Against Illegal Immigration,
which is still active today. The participants of the attacks, whose names
are known, have remained unpunished.
Top officials rarely make openly racist statements, but such things do happen. While commenting on the severe local laws restricting migration into
the territory, A.Tkachov, Governor of the Krasnodar territory, said:
One can define whether the migrant is legal or not by his surname, or
rather by its ending. Surnames ending with “yan,” “dze,” “shvili,” “ogly”
[i. e., those of Armenians, Georgians, Azerbaijanis] are illegal, just as illegal are those who bear them.137
There is no systematic persecution of racist organizations. Measures such as
the refusal to register an organization is a rare and not always efficient
thing. The Federal Law “On Countering Extremist Activity” brought two
new articles to the RF Criminal Code — Article 2821 (“Organization of an
Extremist Community”) and Article 2822 (“Organization of the Activity of
an Extremist Organization”) — which are aimed to facilitate the persecution of organized criminal, and in particular racist, activity. Yet, cases are
not known when these grave articles, and Articles 210 (“Organization of a
134
Human Rights in Russian Regions — 2002 (Moscow: Moscow Helsinki Group, 2003).
Information on the crimes of racists and the actions of the authorities in respect to them
up to January 2003 had been collected by the “Panorama” Information and Research Center
at http://panorama.ru/works/patr/govpol/.
136
“Russian Jews Demand that a Police Colonel Be Fired for Anti-Semitism,” Lenta.Ru (May
31, 2002).
137
I.Bederov, “Illegal Second Name,” Novaya Gazeta (July 11, 2002).
135
108
Criminal Community”) and 239 (“Organization of an Association Infringing
upon the Integrity and Rights of Citizens”) of the RF Criminal Code, which
had previously served the same purpose, were applied to racist organizations.
ARTICLE 21
The right of peaceful assembly shall be recognized. No restrictions may be placed
on the exercise of this right other than those imposed in conformity with the law
and which are necessary in a democratic society in the interests of national security or public safety, public order (order public), the protection of public health or
morals, or the protection of the rights and freedoms of others.
The right of peaceful assembly is guaranteed by the RF Constitution (Article 31). The domestic legislation (the May 25, 1992 Presidential Decree “On
the Procedures to Arrange and Conduct Rallies, Marches, Demonstrations
and Picket Lines”) provides for notification-only process with regard to the
organization of rallies and pickets. Any such event can be banned only if it
runs counter to the RF Constitution or threatens public order and security
of citizens. Also, any public event can be terminated whenever the relevant, agreed-upon procedures have been breached, hazards have emerged
to endanger the life or heath of the people, or public order has been violated. Over the past few years, traditional places for rallies and routes for
public marches have generally been finalized.
Continuous monitoring of the situation with regard to the observance of
the right to peaceful assembly in the Russian Federation has been indicative of the obvious fact that certain problems in this area are still quite
relevant.
Those arranging peaceful assemblies encounter obstacles when the scheduled action is particularly ill-favored by the authorities. In addition, whenever a public action banned by the authorities on ambiguous grounds proceeds to be staged anyway, the authorities would normally move in to
detain the organizers and file administrative charges. It has been rather
rare and far between that local law enforcers have resorted to coercive
moves in regard to participants of unauthorized events.
Authorization to stage a public event should come automatically whenever
the arrangers have submitted their application in full conformity with the
established requirements. However, the authorities at times refuse to give
permission to mount a massive public event, or have the event terminated
on some farfetched grounds.
By way of example, on October 31, 2002, soon after the Dubrovka theater
center hostage-taking tragedy (October 23—26), the Central Administrative District Prefecture in Moscow refused to grant permission to run a
traditional picket line against the war in Chechnya, the event having been
held in downtown Moscow (on Pushkin Square) every week since February
2000. To emphasize, no direct banning order was issued, because the relevant application had been filed in accordance with the established procedure. The picket line was terminated by the police, who descended upon
the protesters and had them delivered to the nearest police station, where
administrative offense charges were filed and brought to the attention of
the detained persons.
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Within a week of that development (November 7, 2002), the authorities
actually made an attempt to do the same thing again. However, the presence of highly-visible human rights activists among the picketers compelled the police to conclude that, inasmuch as no specific ban pertaining
to that particular event had been issued, the picketers were not violating
any law. Since then, the no-war-in-Chechnya pickets have been conducted
without police interference.
In July 2002, the Oryol administration banned a massive rally prepared by
the public association “Environmental Security Movement of Central Russia” to protest the construction of a “Northern Oil” refinery in the town of
Zalegoshch, Oryol region. Notably, the banning directive was motivated as
follows: firstly, the “refinery-origin environmental security hazard” was
denied outright; secondly, the scheduled rally “would not help promote the
policies pursued by the Oryol Governor [E. Stroev] to assure prosperity and
stability in the Oryol land;” and thirdly, the square in front of the regional
administration building (where the rally was supposed to be staged) was
undergoing repairs.138
Also, while refraining from directly banning public action, the authorities
have sought to place constraints on the form of these events. Thus, the
march, which was to follow the no-war-in-Chechnya rally on January 12,
2003, was prevented from taking place. Though the march was mentioned
in the relevant application for the desired public event, the subsequent
permission was granted only for the rally itself. Despite the fact that no
explicit ban was issued for the march in question, the police threatened to
make arrests should the rally participants proceed to carry on with the
intended march.
Peaceful assembly participants have been detained by law enforcement
officers and charged with committing administrative offenses whenever
the originally stated topic of a scheduled, peaceful event was changed. For
example, in February 2003 in Ekaterinburg (Sverdlovsk region), the participants of a protest action “against judges violating the law,” which was
staged in full compliance with the applicable procedure, were charged with
committing an administrative offense in the form of changing the stated
action’s topic by means of “spreading slanderous leaflets against individual
judges.”
Regional and local authorities have been releasing regulatory documents designed to place unlawful constraints on the freedom of peaceful assembly.
Admittedly, in a number of cases human rights activists managed to succeed
in getting these arbitrary directives rescinded. For example, human rights
activists in Khabarovsk succeeded — even if after several years of dedicated
struggle — in getting the annulment of Ruling #419 by V. Ishaev, Governor
of the Khabarovsk territory, dated October 29, 1998. Ruling #149 was aimed
at banning “politically-charged events” (public protest actions, rallies, pickets, etc.) on Lenin Square in Khabarovsk “on account of the square being
put into service following repairs.” It was only on January 12, 2002, that the
RF Supreme Court pronounced Ruling #419 unlawful.
138
See the response of the Oryol administration in the archives of the Movement for Human
Rights.
110
* * *
Hence, citizens of the Russian Federation generally enjoy opportunities to
implement their right to peaceful assembly, though now and again they
continue to be confronted by unlawful constraints in this respect. While
interpreting possible hazards to public order and security in an arbitrary
and overly broad manner, the Russian authorities seek to convert the notification-only procedure for the conduction of public events into an authorization-based procedure, thereby securing the power to rule out undesirable public actions.
ARTICLE 22
1. Everyone shall have the right to freedom of association with others, including
the right to form and join trade unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those
which are prescribed by law and which are necessary in a democratic society in
the interests of national security or public safety, public order (ordre public), the
protection of public health or morals or the protection of the rights and freedoms
of others. This article shall not prevent the imposition of lawful restrictions on
members of the armed forces and of the police in their exercise of this right.
3. Nothing in this article shall authorize States Parties to the International Labour Organization Convention of 1948 concerning Freedom of Association and
Protection of the Right to Organize to take legislative measures which would
prejudice, or to apply the law in such a manner as to prejudice, the guarantees
provided for in that Convention.
Situation of NGOs
Currently, about 170 000 non-governmental organizations (NGOs) are registered in Russia. Up to two million people participate in their work, providing services to some 20 million people annually. However, the mission of
NGOs to provide social services and assistance to vulnerable groups, to
represent and defend the interests and rights of their constituencies, and
to conduct other charitable activities is seriously hindered in contemporary
Russia. As documented in numerous reports by Russian NGOs, including
the 2002 Report to the Special Representative of the UN Secretary General on the Situation of Human Rights Defenders, implementation of the
right for freedom of association and the situation of NGOs in Russia have
considerably worsened during the last three years. On the federal level,
their activity is hampered by the adoption in 2000—2002 of new repressive
legislation affecting NGOs. In particular this legislation negatively affects
NGO’s as regards taxation, the participation of NGOs in court proceedings,
and countering extremist activities. On the local and regional level, harassment of and pressure on human rights and other types of NGOs are
perpetrated by public authorities.
The Factor of Legislation
The right for freedom of association is guaranteed by Article 30 of the
RF Constitution. Legislative framework of this right’s implementation and
regulation of activities of NGOs are enshrined in federal laws adopted in
the mid-1990s: the 1995 Federal Law “On Public Associations,” the 1995
Federal Law “On Charitable Activities and Charitable Organizations,” and
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the 1996 Federal Law “On Non-Profit Organizations,” as well as in the
RF Civil Code of 1995.
While this legislation provides strong general guarantees for freedom of association, there are certain provisions there that seriously limit the activities
of NGOs. Federal Law “On Charitable Activities” includes a limited list of
areas of activities that are considered charitable in purpose; human rights
work and civil society development are not part of that list. Article 582 of
the RF Civil Code allows only certain types of NGOs to receive tax-exempt
donations; several of the most wide-spread types of NGOs are prohibited
from receiving donations, and are thus placed in an unequal legal position in
comparison with other types of non-profit structures.
In 2000—2002, a number of new federal laws were adopted effecting
NGOs. In 2001, the new Criminal Procedure Code and the new Civil Procedure Code, which effectively deprive NGOs of the possibility to represent individuals in judicial proceedings, were a significant step back as
compared to previous legislation.
In 2000—2002, the State Duma adopted a new Tax Code which threatens
the very existence of NGOs, by establishing a taxation regime for them
that is similar to that of commercial companies. This includes a 20% VAT
on free services provided by NGOs, and a restrictive definition of a grant,
in accordance to which grants supporting many types of NGO activity, including human rights work, social assistance, civil society development, etc.
no longer enjoy tax breaks: the NGO-recipient of the grant is required to
pay a profit tax of 30%.
The new Federal Law “On Foreign Technical and Humanitarian Aid”
adopted in 2000 became another barrier for the work of NGOs by establishing a complex centralized bureaucratic procedure of registration of programmes supported by funds from foreign governments and international
organizations for the purposes of obtaining tax breaks. The law requires
approval of such programmes by respective regional authorities, and their
agreement to control the expenditure of the aid funds.
The new Federal Law “On Countering Extremist Activities” adopted in
July 2002, and the consecutive related changes to Federal Law “On Public
Associations” give the state excessive powers by enabling it to extrajudicially suspend activities of any NGO that is, for example, allegedly engaged “in planning preparation or execution of activity undermining the
security of the Russian Federation,” as specified in a very broad definition
of extremist activity in Article 1 of the new law.
Pressure against NGOs
The principal methods of pressure against NGOs are denial of registration,
prosecution, detention, and abuse by police, etc.
Registration
During the mandatory official re-registration of membership-type NGOs in
1999, local departments of the Ministry of Justice arbitrarily refused to
renew registration of a large number of NGOs for illegitimate reasons or
on the basis of formal pretexts. There are sufficient reasons to believe that
regional and local authorities used the renewal of registration procedure as
an opportunity to eliminate the organizations they did not feel comfortable
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with. This practice primarily affected human rights and environmental
groups. Many denials of registration were accompanied by illegitimate demands to remove the words “human rights protection” from the names
and statutes of NGOs. This demand was imposed on many well-known
groups, such as “Environment and Human Rights” Coalition, “Memorial”
Human Rights Centre, Glasnost Defence Foundation, Moscow Human
Rights Research Centre, Center for Assistance to International Protection,
Soldiers’ Mothers of Russia Movement, and others.
Authorities justified their illegal requirement to remove the words “human
rights protection” from organizations’ names and statutes claiming that
according to the RF Constitution, human rights protection is the state’s
obligation, therefore NGOs are not authorized to protect human rights on
their own, and may only “assist” the state and professional lawyers in their
work for human rights.
All-together, dozens of organizations were forced to shut down and stop
their activities. As a result, only 5% of membership-type NGOs survived in
the Tambov region, 12% in Moscow, and 20% in the Krasnodar territory.
Overall, since 1999, regional departments of justice responsible for the renewal of registration have filed to over 1,300 suits on the liquidation of
non-government associations to courts.
Authorities in several Russian regions, in particular the Krasnodar territory, often refused registration of new organizations in 2002—2003 on formal pretexts, and put forth endless arbitrary demands to change groups’
charters and other incorporation documents.
Persecution and Harassment of NGOs
Regional authorities subject human rights and other NGOs to various
forms of pressure, up to paralyzing their work by performing repeated
checks on their activities, financial and otherwise, evicting them from their
office space, by spreading defaming information, etc. The situation is particularly alarming in two regions in the South: Krasnodar and Chechnya.
The government of the Krasnodar territory, which is notorious for numerous human rights violations, including those in the field of racial discrimination and the establishment of effective control over regional mass media
and courts, regularly repress the human rights of NGOs, including those
that monitor and report on the local human rights situation.
In the Chechen Republic, those who work in NGOs are at great risk; the
illegal detainment of NGO activists by federal troops, their arrests, placement in filtration camps, beating, denial of medical assistance, searches of
offices, the confiscation of NGOs’ property and documentation, etc. are virtually paralyzing very important activities of independent non-governmental organizations in this region, which sees the most acute abuses of
human rights in Russia.
Criminal Prosecution
NGO activists often become a target of persecution through the opening of
criminal cases against them, by being convicted of criminal offences, by
being declared insane, through subjection to forced psychiatric examination, forced placement in a psychiatric hospital, by being threatened with
physical violence, by being detained and beaten by police, etc. Quite a di113
rect connection can often be observed between critical statements made by
human rights defenders against the authorities, including accusations of
corruption, and the following actions against activists; often, public officials
openly underline this connection. Cases of physical violence against human
rights defenders, including murder, are not properly investigated by authorities, and the perpetrators are usually not found.
More than 20 criminal suits have been lodged against NGO activists over
the last three years, with quite a large share of them resulting in conviction. Examples include criminal prosecution against human rights defenders G. Dundina and R. Gabidulin in the Arkhangelsk region in 1999, I. Fedotov, head of “Phoenix” NGO helping migrants and refugees in the
Novgorod region in 2000, A. Konovalov, a member of the “Car Enthusiasts
Society” in the Perm region in 1999, environmental activist and lawyer
M. Konstantinidi in the Novorossiisk region in 2002, and the young advocate for the repeal of army conscription and against the war in Chechnya
D. Neverovsky from Obninsk in the Kaluga region in 2001, etc.
Arrests and Beatings by Police and FSB. Physical Abuse
In 2001—2002, on many occasions police officers arrested and used violence
against anti-war activists from the Ekaterinburg Society Against Violence
(G. Edelev and others), environmental movement “Guardians of the Rainbow,” and against activists from the anti-nuclear campaign in Ekaterinburg (Sverdlovsk region) and in the Republic of Udmurtia.
Forced Psychiatric Tests and Treatment
The chairman of the southern regional branch of Chuvashian Association
of Victims of Political Repression, N. Shemyakin, was subjected to forced
hospitalisation in a psychiatric clinic in 1999 after challenging the management of the Kanashsky railway-carriage repair works, accusing them
of dishonest dealings and fraud. In 2000, human rights defender Victor
Prudnikov from Tyumen was forcefully hospitalised for a forensic psychiatric examination, spending nineteen days in a psychiatric hospital. In December 1999, A. Bugayenko, leader of the “Narodny Front” NGO from
Nerungry was forcefully hospitalized in a psychiatric hospital by a court
decision for what the court described as “inadequate behaviour characterized by obsessive litigation, paranoid ideas, and fighting for false justice.”
He was kept in a psychiatric hospital and subjected to forceful treatment
for four and half months between December 1999 and May 2000.
Other Facts
There are other facts of intimidation and threats by authorities against
NGOs. In February 2002, Military Commander Major-General Volkov in
Nizhnii Novgorod threatened V. Gursky, leader of a local Peacemaking
Group, with physical violence. The threats were caused by V. Gursky’s
advocacy of alternative civil service for conscientious objectors.
Ungrounded public accusations and negative comments made by authorities about human rights NGOs are very common. V. Kartashkin, then
Chairman of Human Rights Commission under the RF President, while
speaking at a press-conference in June 2001, accused one of the most
widely respected human rights organizations, the “Memorial” Society, of
anti-state activities.
114
Also common are unlawful penalties and fines, discrediting reports about
NGO activists sent to their employers, eviction of NGOs from their office
spaces. For example, a well-known Moscow-based human rights NGO, “For
Civil Rights” Committee, was evicted from its office space in March 2002.
In 1998, the same happened with the Nizhnii Novgorod branch of
“Mother’s Right” Foundation.
Situation of NGOs in the Krasnodar Territory
NGOs in the Krasnodar territory come under most severe pressure and
harassment by authorities and law enforcement. As prosecution against
human rights defenders is commonly based on invented and false pretexts,
cases are closed and reopened, sometimes for years on end .
When NGO activists demand that the rights of the victims of human
rights violations be protected and obvious crimes committed by law enforcement officers be investigated, “extreme” measures are used against
them. A member of the Human Rights Association of the Krasnodar Territory, S. Ushakov, was robbed (several thousand US dollars were taken) and
injured by FSB agents. The perpetrators were not punished, although repeated complaints were filed with the then-Prosecutor General Skuratov.
In December 1998, S. Ushakov was shot by a hired assassin; the murder
was witnessed by his wife and a few dozen other people. The murder case
was later closed by the local prosecutor.
Over more than two years between 1997 and 1999, law enforcement agencies in the Krasnodar territory kept in detention, without a court warrant,
local human rights defender V. Chaikin, who suffered from a compression
fracture of the spine, heart disease, and high blood pressure. In October
1999, Chaikin was convicted by court and sentenced to two years and four
days of imprisonment.
In 1998, an assassination attempt was made against V. Rakovich, Chairman
of the Krasnodar Human Rights Center, editor-in-chief of Human Rights
in the Krasnodar Territory newsletter, regional human rights monitor of
the Moscow Helsinki Group, and a member of Amnesty International. In
the course of V. Chaikin’s trial, in which Rakovich acted as public (lay)
defender, during a break, a group of individuals attacked Rakovich and
beat him saying, “Now we are going to kill you in revenge for our brother
Tsaturian” (Tsaturian was the name of the investigator in charge of Chaikin’s case). As a result of the traumas suffered, Rakovich was hospitalised
for more than two months. Law enforcement officers avoided recording the
crime for almost six months, and the criminal case was later closed by
prosecution. In 1999, Rakovich was unlawfully arrested for five days. While
he was kept in an underground cell by the Leningrad regional police department, they had to call an ambulance five times to give him emergency
medical assistance. After three days, the police took their near-dying prisoner to the hospital. Rakovich’s health is permanently damaged because of
the incident.
In May 2002, the Krasnodar Human Rights Center, after repeated pressure
from authorities, was informed that the Territorial Department of Justice
asked the court to suspend the Center’s activity for three years. Russian
laws do not provide for such a long period of suspension. Regional authorities are uncomfortable with the Center, first and foremost, because the
organization publishes an annual human rights report containing objective
115
criticism of the Krasnodar administration and law enforcement agencies. In
October 2002, the Justice Department issued an order suspending the activities the Krasnodar Human Rights Center for six months, using the new
powers, provided by Federal Law “On Countering Extremist Activities,” to
suspend an NGO’s work without a court decision, and at the same time
withdrew the earlier request to the court. The reasons for suspension were
the same as in the court claim.
In 2001, another NGO, “Mothers Advocating for the Rights of Detainees,
Defendants, and Convicts,” publicized facts of torture and inhuman punishment practiced by enforcement officers in the Krasnodar territory
against people in custody. Shortly after the publication, the NGO was
evicted from their office space allegedly for “a breach of regulations.”
While T. Rudakova, leader of the group, was away on a business trip, all
documents collected by the NGO (complaints, statements, testimonies)
were dumped outside the building (among these documents, there were
numerous letters by convicts and detainees alleging torture and inhuman
treatment).
In August 2002, “Vatan” International Society of Meskhetian Turks, registered in the town of Abinsk, was closed by a local court in response to the
Territorial Department of Justice’s claim of “non-compliance with its statute in the part concerning the repatriation of Meskhetian Turks to Georgia.” The suit came after the Society’s leader, S. Tedorov, sent a letter to
the RF President asking him to take urgent measures to put an end to the
increasing ethnic discrimination of the Meskhetian Turks in the Krasnodar
territory, and to stop the plans of forceful deportation of this ethnic minority.
Two Novorossiysk-based organizations, the Human Rights Committee and
the “School of Peace” Foundation, were among those that publicized the
hunger strike stged by Meskhetian Turks in the village of Kiyevskoye in
Krasnodar territory. The hunger strike started on June 22, 2002. On June
25, representatives of the organizations were invited to Krasnodar by the
head of the international relations department of the Krasnodar territory
administration for a meeting concerning the hunger strike. They were informed at the meeting that as soon as Federal Law “On Countering Extremist Activity” was adopted, it would be used against those who disagree with the policy of the Krasnodar Governor, Tkachov, and that if the
human rights defenders in Novorossiysk agree to pressure the international
community into urging Georgia to accept the Meskhetian Turks into its
territory, then the territory’s government would grant any kind of support
to the said NGOs.
Pressure, intimidation, and harassment are used, as a rule, against NGOs if
they voice their concerns about the human rights situation in the region,
and their criticism of the regional government’s actions is conducted via
the following methods: the dissemination of their materials, informing the
public and mass media of human rights problems, giving recommendations
to the authorities with regard to the improvement of the human rights
situation, by urging the federal government to take appropriate measures
to ensure that the territorial governments observe the RF Constitution,
federal laws, international human rights obligations, etc.
The practice of pressure and persecution of organizations and activists is
inspired and enforced, as a rule, by local and regional authorities. Federal
116
authorities, however, do not adequately react to this practice, despite numerous appeals by NGOs and publications in the media. This inaction can
be qualified as tacit support; local authorities often interpret the federal
government’s lack of critical reaction as encouragement of the practice of
persecution and pressure against NGOs.
Situation of Trade Unions
The Factor of Legislation
Prior to 2002, the legal status of Russian trade unions had been underpinned by the following two statutes: Federal Law “On Trade Unions,
Their Rights and Commitment Guaranties” (“On Unions”) and the Code of
Laws on Labor. February 1, 2002 saw the enactment of the RF Labor Code
which notably limited trade union rights. Although the aforementioned
Federal Law “On Trade Unions” has not been either revoked or updated in
any way, it has largely become ineffective, since in a number of aspects it
actually contradicts the provisions of the newly adopted Labor Code.
The following are the areas where the status of Russian trade unions has
deteriorated:
The Right to Represent the Interests of Employees
On the level of individual organizations, the right to represent the interests
of employees is only enjoyed by unions established as primary trade union
organizations (only primary union organizations are able to participate in
either labor-management negotiation agreements or in resolving industrial
labor disputes).
For all practical purposes, this particular rule results in discrimination
against unions that are not integrated in any trade union association, or
that maintain no primary union organizations, not to mention the extra
challenges of negotiating labor-management contracts. Given the risks,
many trade unions have been compelled to reconsider their organizational
structure. The problem is that demands from unions unwilling to restructure themselves have often been ignored by employers.
Concluding Labor Agreements
The RF Labor Code carries an explicit description of organizational levels
cleared to negotiate collective agreements, which actually rules out any
possibility to conclude collective professional agreements. Also, the RF Labor Code decrees that collective agreements can only be done with employer associations (other representatives of employers are denied this possibility). Since most Russian regions and industrial sectors have yet to
develop such associations, functional trade unions have no party with
which to negotiate an agreement.
Conducting Negotiations and Concluding Collective Labor Contract
The RF Labor Code provides for the negotiation of a single labor contract
which is applicable to any and all employees, without professional distinction. The problem is that, for example, professional unions of air controllers, airliner pilots, and others now have no right to conclude a collective
labor-management contract to take good care of their concerns. The guide117
lines for shaping a single representative body (formed in proportion to the
total of union members, with a primary union organization being at least
represented by one agent) had been drafted in such a manner that voices
from small-sized professional unions have nearly been negligible.
Resolving Labor Disputes and Calling a Strike
Under the RF Labor Code provisions, Russian unions have actually been
denied the right to strike (the old legislation provided for that right): a
trade union has no right to call a strike; motions with regard to coming
forth with demands on a collective labor dispute or calling a strike must be
confirmed by the majority (in some cases, by the qualified majority) of
employees of the organizations. A strike is acknowledged exclusively as a
way to resolve collective labor disputes, all other objectives are ruled out.
Participating in Regulating Labor Conditions and Ruling on Redundancies
The RF Labor Code only provides for pro-forma union participation when
ruling on redundancies or firing an employee. Trade unions are no longer
able to participate in the definition of labor conditions where the employer
drafts and introduces local regulatory measures. The legally-prescribed
rule to account for the union’s concerns (particularly given the intricate
sequence of steps to be completed in the process) has in no way limited the
employer’s powers to define labor conditions at his own discretion. Notably,
it is only all-Russian (sometimes inter-regional) union associations that
have the right to set up dedicated union inspection teams to oversee the
implementation of labor legislation.
Maintaining Safeguards Related to Labor Activities
While in the past members of the elected union bodies would enjoy ironclad safeguards against being disciplined or made redundant, today those
officials (the list is now limited to elected heads and deputy heads of union
governing bodies) can only enjoy guarantees against being fired on three
sets of grounds. The rest of regular union activists do not enjoy safeguards
on that score.
Overall, the current government policy course has been directed towards
supporting the larger and more stable union organizations. When compared
with the previous period, the role of trade unions has now dramatically
decreased. Although it has been declared that unions have priority in
regulating labor-management relations, the reality has been the opposite.
We are aware of a number of court rulings under which the collective labor contracts have been invalidated in their part regarding the improvement of the employeers’ situation beyond relevant provisions of the Labor
Code. Notably, this transpires amidst an environment in which the generally proclaimed policy is that collective labor contracts and agreements
should be made in order to create labor conditions at par with the standards prescribed by law, with any further improvements in the workplace
only being welcome.
Persecuting Union Activists and Exercising Pressure on Trade Unions
Unions have often been denied registration, although under Federal Law
“On Trade Unions” the registration requirement primarily serves the function of notifying the authorities. No justice body is authorized to deny reg118
istration to a trade union. Fortunately, the courts have often honored the
appeals against union registration denials.
Particularly common have been cases of union activists being persecuted
by employers, while relevant power agencies remained indifferent to those
developments. Just as a union, whether posing as an independent organization or as part of a trade union association (such as FNPR, Sotsprof, etc.),
begins to firmly stand up for the rights of its members and against the
labor policies of the employer, its leaders and regular members soon become targets for disparate pressure from the management. Tactics include
direct layoffs (for allegedly breaching the office rules or works requirements), threats and pressure directed at targeted persons and their family
members (a railroad depot master, for example, organized a meeting with
all spouses of the employed engine car drivers and suggested that their
families would really struggle to survive unless their husbands chose to
leave the union), all the way to promises of career improvement or wage
raises on the condition that the targeted activists leave the local trade union. Sometimes, the employers would resort to reshaping their businesses,
creating new structures and doing other organizational changes in order to
get rid of the in-house union. Now and again, one can see bonus money
paid to have the local union phased out. There have been numerous examples to that effect all across the Russian Federation. It appears to be nearly
impossible to prove in a court of law that union members have been discriminated against. Furthermore, Russian judges generally avoid using the
term “discrimination” in any of their remarks or conclusions. Out of a very
large number of suits, there have only been two cases when this kind of
discrimination was confirmed by a court of law.
Government interference in the affairs of Russian trade unions has been
less visible than intrusions on the part of employers. Nevertheless, such
cases have also been recorded. Larger employers (state-run unitary enterprises and others) have been pushing prosecutors to put pressure on local
unions (the prosecutors would normally bring suits to have a union activity
or industrial action deemed as unlawful, get the given standing statute invalidated as contrary to law, etc.). Sometimes, even the official labor inspectors, government agencies, and departments come to interfere in the
affairs of sector trade unions. For example, at the end of April 2003, the
Federal Air Transportation Service (FSVT) made another attempt to evict
the Federal Union of Air Controllers from their legitimate premises in the
FSVT building by way of increasing the rent and maintenance charges.
ARTICLE 23
1. The family is the natural and fundamental group unit of society and is entitled
to protection by society and the State.
According to Paragraph 1, Article 38 of the RF Constitution, the family is
under protection of the state. Indeed, in Russia the family has been traditionally regarded as an object of protection on the part of the state and
society. This is primarily due to the fact that the family acts as the milieu
which shapes a human being. In connection with this, measures aimed to
support problem families with children (including social support measures)
also constitute the protection of the family by the state. It must be pointed
out that no mechanisms have been developed in the Russian Federation for
119
the protection of the child in a family where the child’s rights are violated
by adults. Although the law establishes the child’s right to apply to a court
if his/her rights are violated by the parents, the actual possibility (mechanism) for the child to apply for legal aid is not provided for. Federal Law
“On the Advocate Activity and the Bar in the Russian Federation” adopted
on May 31, 2002, speaks about the free provision of legal aid only to one
narrow category of adolescents, i. e., adolescents kept in institutions of the
delinquency-prevention system. All other children who remain outside
such institutions cannot get free legal aid.
The present-day Russian legislation in the field of family protection is
characterized by the following main drawbacks: absence of clear-cut division of the authority between the federal center and the subjects of the
Russian Federation in inter-budget relations and the competence of the
federal and regional administrative structures with regard to the financing
of the expenditures on children, protection of children, payment of state
allowances for them, etc.139 During the past decade, arrears on the payment
of monthly and other children’s allowances formed all the time, and the
financing of expenditures on the implementation of the federal target programs for the social support of the family, including the presidential program “Children of Russia,” was repeatedly delayed and its volume reduced. The expenditures of the “social” lines of the federal budget and
regional budgets were repeatedly cut. Certain improvement in the economic situation of the country in 2000 made it possible to markedly reduce
the arrears on the payment of monthly children’s allowances and other
social allowances, and to ensure the full financing of the program “Children of Russia” for 2000.140 However, according to information from another official source, in spite of the positive trends reported in some subjects of the Russian Federation, in 2000 there were arrears on children’s
allowances in 71 regions, and in 24 of these regions the arrears even grew
larger.141 The presentation of different statistical data by different governmental agencies graphically testifies to the lack of cooperation and coordination between these agencies. This inevitably affects the degree to which
a child in a family can be protected.
Social allowances established by law for children and families with children are insufficient for the adequate maintenance and raising of children
in a family. The State Report “On the Situation of Children in the Russian
Federation” for the year 2001 notes that the proportion of families with
adolescents and an average per capita income below the subsistence level is
so large that such families still form the majority of the poor population.142
Therefore, the measures taken by the state cannot be considered sufficient
for rectifying the situation in the field of the protection of the family.
In raising the issues of social protection, the Fifth Periodical Report of the
Russian Federation cites as an example Federal Law #159 of December 21,
1996, “On the Additional Guarantees for the Social Protection of Children139
G. Klimantova, T. Fedotovskaya, “Healthy Family — Healthy Generation,” Analytical Bulletin of the Federation Council of the Russian Federation Federal Assembly (#13, 2001, p. 36).
140
Ibid.
141
“On the Situation of Children in the Russian Federation,” 2001 State Report (Moscow:
REATE, 2001, p. 11).
142
“On the Situation of Children in the Russian Federation,” 2002 State Report (Moscow:
REATE, 2002, p. 6).
120
Orphans and Children Left without Parental Care.”143 This law establishes
additional guarantees for the given category of children to assure their
right to education, medical service, property, dwelling, and work. It must
be noted that this law establishes only the general responsibility for noncompliance with the law and violations of the rights of the child laid down
thereby, which goes outside the framework of the family law. The formulation of Article 11 of the law, which contains this provision, is rather
vague and does not mention any sanctions. Moreover, it does not say how
offenders are to be held responsibile, thus allowing the person guilty of the
violation of the child’s rights to avoid punishment.
Attention must be paid to the fact that in its recommendations to the Russian Federation the UN Committee on the Rights of the Child mentions
reports about the on-going practice of local authorities in some subjects of
the Russian Federation which deny parents and their children access to
medical, educational, and other services, because of the absence of registration at the place of residence, even though such restrictions are unlawful.144 Despite numerous complaints by individuals and organizations against
the actions of local authorities submitted to federal authorities, no effective
measures to rectify the existing situation have been taken.
Thus, in violation of the law, the authorities of the Krasnodar territory do
not recognize Meskhetian Turks as Russian Federation citizens, and treat
them as illegal migrants, aliens who temporarily reside in the territory.
This manifests itself, among other things, in the response of V. Rybin, head
of the city of Krymsk and the Krymsk district of the Krasnodar territory,
to a statement of a group of Meskhetian Turks who applied for assistance
in the restoration of their houses destroyed by a flood in 2002. In his letter
#1411, dated September 9, 2002, V. Rybin states that the applicants are
stateless persons, and, therefore, their houses cannot be included on the
list of houses to be restored. Moreover, asserting that social guarantees do
not apply to the migrants and their children, he suggested that the Krasnodar Governor expel them beyond the boundaries of the territory.
* * *
2. The right of men and women of marriageable age to marry and to found a family shall be recognized.
Most of the well known cases of the violation of the right to marry and
found a family involve national minorities, including Meskhetian Turks residing in the Krasnodar territory. They are denied registration of marriages,
and the children born to such families are officially regarded as children
born out of wedlock.145 The position of this group of the population is described in more detail in the section on Articles 24 of ICCPR in this report.
143
“Code of Laws of the Russian Federation,” #52. Item 5880
“Report of the UN Committee on the Rights of the Child,” UN General Assembly Official
Records. Fifty fifth session. Supplement #41 (A/55/41, p.176).
145
Report by the “School of Peace” Foundation, “Discrimination against the Children of
Meskhetian Turks in the Krasnodar Territory Supported by the Russian Federation” (Moscow, March 2003, p. 9).
144
121
ARTICLE 24
1. Every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society, and the State.
In recent years, legal regulation of the position of minors in the Russian
Federation, and of the bodies authorized by the state to protect them, has
become even more detailed (Fifth Periodical Report of the Russian Federation notes that more than 200 regulations have been adopted in the past
decade, which concern the rights of the child, including such rights in a
family). Yet, the situation in the field of minors exercising their rights has
not improved.
Although, according to the RF Family Code (Article 56), children have the
right to apply to court on their own from the age of 14 years, the law does
not establish a mechanism for children’s application to administrative and
judicial bodies. Meanwhile, the absence of such a mechanism hampers the
realization and protection of the rights of minors if they have no lawful
representatives (parents, foster parents, guardians and trustees), or in the
event of a conflict with them. Although the right of the child to express
his/her opinion is laid down by Article 57 of the RF Family Code,146 practical experience often shows that the guardianship, wardship and trusteeship bodies, as well as courts, refuse to consider the opinion of the child by
referring to his/her suggestibility. Decision #10 of the Plenum of the Supreme Court of May 27, 1998, “On Application by Courts of the Laws
When Resolving Disputes Connected with the Bringing-Up of Children,”147
which clarifies this legal provision, has not produced any effect on the
practical application of the law.
Thus, real conditions for the exercise of this right are yet non-existent, because the current civil-procedural legislation does not define the status of
an adolescent participant of civil proceedings who lost parental care or
tries to protect his/her rights.
As to the administrative protection of a child’s rights, the Russian Federation has a system of state bodies charged with the protection of the rights of
minors, which, however, are characterized by the absence of cooperation
and coordination among them. The main authority which provides protection
of the rights of the child are the guardianship and wardship (trusteeship)
boards, which function within the local self-government bodies. Organization
of the work of bodies of local self-government is determined by the charters
of municipalities in accordance with the laws of the subjects of the Russian
Federation, some of which have laws regulating the organization of guardianship and wardship work. As of the beginning of 2001, such laws have
been adopted in only 60 subjects of the Russian Federation.148
146
According to Article 57 of the RF Family Code, when a child attains to the age of 10 year
his/her opinion must be taken into consideration when any matters affecting his/her interests
are decided, unless this goes against his/her best interests.
147
Bulletin of the Supreme Court of the Russian Federation (#7, 1998).
148
E. Chepurnykh, E. Bukhman, I. Volodina, et al., New Model of Organization of Local SelfGovernment Bodies in Charge of Guardianship and Wardship of Children: Model of Educational Institution of a New Type for Orphans and Children Left Without Parental Care (St.
Petersburg: Obrazovanije i Kultura, 2001, p. 11).
122
Under Russian regional law, officials in charge of the protection of minors’ rights are appointed so that there should be one such official for
every 5 000 minors.149 There is no doubt that one official is unable to pay
adequate attention to all the children who need protection in a given territory.
In addition to the already existing system of bodies for the protection of
a child’s rights, there is also the Office of Ombudsman of the Russian
Federation and Offices of Ombudsman for the Rights of the Child in several Russian Federation subjects. At present, the Office of Ombudsman
for the Rights of the Child has been introduced in 15 regions of Russia,
and the State Duma is contemplating the adoption of a bill entitled “On
the Ombudsman for the Rights of the Child in the Russian Federation.”
However, the adoption of this bill does not solve the tasks that have been
set. Given the fact that so far the State Duma has not worked out and
approved a national minimum standard of living for children, by which
the Ombudsman would be guided in his work, and the Ombudsman’s
competence is limited to making recommendations, the creation of this
office cannot produce a significant effect on the assurance of a child’s
rights.
According to the Ombudsman for the Rights of the Child in Moscow, he has
received 412 complaints over the course of one year.150 This number of applications is extremely small considering the number of violations of children’s
rights which are committed every year as cited by official sources.151 A
noteworthy fact is that in most cases it is parents that apply to the Ombudsman for help. This fact demonstrates the current ineffectiveness of this
institution for children. The Moscow Ombudsman for the Rights of the Child
does not even have an office to which a child could come.152
In the Fifth Periodical Report of the Russian Federation, the enactment of
the 1999 Federal Law “On the Fundamentals of Child Neglect and Juvenile
Delinquency Prevention System” is characterized as a step forward in the
struggle against the homelessness of children. However, upon the elapse of
three years after adoption of this law, the problem of homeless children
remains one of the most serious problems of Russia. The authorities do not
know the exact number of homeless children and cite different figures.
Thus, V. Ozerov, Chairman of the National Security and Defense Committee of the Federation Council, has stated that, according to various estimates, at present there are anywhere from three to five million homeless
children in Russia.153 According to the RF Minister of Education “now there
149
See, for instance, Article 7 of Law #16 of the City of Moscow of June 4, 1997, “On Organization of Guardianship, Wardship and Patronage Work in the City of Moscow” or Article 10
of Law #43-3 of the Nizhnii Novgorod region of September 10, 1996, “On Organization and
Activity of Guardianship and Wardship Bodies.” Bulletin of the Legislative Assembly of
Nizhnii Novgorod Region (#6, 1996).
150
“Children Have their Defender,” Tverskaya, 13 (April 1, 2003).
151
In 2001, 56,350 children were left without parental care because their parents were deprived of parental rights, 3,409 children were taken away from their parents without annulment of the parental rights and 65,535 minors fell victims to crimes. Bulletin of the Analytical
Department of the Federation Council (#3 (196), 2003, pp. 120, 127).
152
“Official against Official,” Novaya Gazeta (#29, April 24 — 27, 2003).
153
M. Sergeev, “Struggle against Homelessness of Children.” Strana.Ru (January 14, 2002).
123
are from 100 000 to 500 000 homeless and neglected children.”154 However,
independent experts speak of millions.155
At present, the struggle against the homelessness of children remains ineffective. Thus, in Irkutsk, the police conduct regular raids to round up
homeless children, but do so for no purpose: eventually, they have to let
the children go because there are no shelter, and these children do not
want to go back home to their problem families or orphanages.156
One more serious problem is the failure to observe the rights of minors
who have no Russian Federation citizenship. The position of this category
of children has deteriorated since the adoption of the new Federal Law
#62 of May 31, 2002, “On Citizenship of the Russian Federation,” which
shall be discussed later within this section of the report when we touch
upon the situation regarding the observance of Article 24.3 of ICCPR.
Those children who are under the care of the state are in a difficult position. Such children are deprived of protection, because they are physically
unable to appeal the actions of their tutors and to prove their guilt. Oftentimes, the children are not aware of the possibility to make complaints or
do not know how to do this properly. In those cases where a complaint
does reach a prosecutor’s office, the prosecutorial officials return the complaint to the same children’s institution to clarify the situation, after
which, as a rule, the complainants are severely punished.
Because of the lack of financing, many orphanages and other children’s institutions are in a deteriorating condition, with the risk-factor being quite
great at times. In some cases, this has already led to tragic consequences.
This is exemplified by recent fires in children’s institutions in various regions
of Russia (five fires in the period from April to the beginning of May
2003),157 with 23 and 30 children respectively dying in two of such fires.
* * *
2. Every child shall be registered immediately after birth and shall have a name.
In accordance with Russian legislation (Federal Law “On the Acts of Civil
Status”), a birth certificate must be issued for every child. At the issuance
of a birth certificate, the birth of the child is officially registered with the
indication of the first name, patronymic, and surname of the child and the
child’s parents. Registration may be refused in the case of absence of a
medical certificate evidencing the birth, or in a case where the person who
wants the fact of the birth to be certified has no document certifying
his/her identity.
In the Krasnodar territory, refusal of registration of children whose parents do not have documents certifying their identity is common in respect
of some ethnic minorities. Up to this day, the Meskhetian Turks who arrived in the Krasnodar territory in 1989—1990 are refused registration at
their place of residence by the local authorities.158 Because of the absence
154
Ibid.
O. Nesterova, “The Hardest of Misfortunes.” Trud (#37, January 16, 2002).
156
M. Noskovich, “Homeless Children Were Washed Specially for New Year Celebrations.”
Izvestiya (#4, January 14, 2002).
157
In the Sakha Republic (Yakutia), Dagestan Republic, Buryat Republic, Moscow, Irkutsk region.
158
For more details, see the section on Article 26 of ICCPR in this report.
155
124
of registration, young people cannot receive passports upon coming of age.
Turkish girls marry (the marriages are not registered) and bear children.
However, if the mother does not have a passport, the local registries refuse
to issue the child’s birth certificate. A similar situation is faced by the
refugees who left the zone of military conflict in Abkhazia (Georgia) and
came to the Krasnodar territory in 1992—1993.
Without a birth certificate or a passport, the child is deprived of all state
social guarantees of the exercise and protection of his/her rights (particularly, health, education, possibility to apply to a court of law, etc.).
* * *
3. Every child has the right to acquire a nationality.
Theoretically, the 1991 Federal Law “On Citizenship of the Russian Federation,” among other things, aimed to eliminate the statelessness of children. The law guaranteed Russian Federation citizenship to a child if one
of its parents had Russian citizenship (Paragraphs 1, 2, Article 15). Russian
citizenship was also to be granted to a child living within the territory of
Russia if the child would become a stateless person otherwise. (Paragraph
2, Article 15).
The 1991 Law “On Citizenship of the Russian Federation” remained in
force for ten and a half years (from 1991 to 2002) — a period too short to
make any conclusions about the practical application of this law. In particular, children born to persons who were denied registration at the place
of residence from early 1989, and who were regarded by the Russian authorities as “illegal migrants” and stateless persons (such as the Meskhetian
Turks in the Krasnodar territory), could not yet attain to the required administrative full age (14 years), and ran into problems regarding the recognition of their citizenship and the issuance of documents certifying their
identity. However, in the 90s, the authorities of the Krasnodar territory
repeatedly stated that they regarded all Meskhetian Turks without registration at their place of residence as stateless persons, including those born
in the Russian Federation.
Adoption of the new Federal Law “On Citizenship of the Russian Federation” in 2002 (hereinafter referred to as 2002 Citizenship Law), reduced the
guarantees preventing the statelessness of children. According to the new
law (Paragraph 3, Article 9), a child’s Russian Federation citizenship shall
not be discontinued if the child will become a stateless person after such
discontinuation. Under Article 12 of the 2002 Citizenship Law, a child acquires Russian Federation citizenship at birth if on the child’s day of birth:
(a) both parents or the single parent of the child have (has) Russian Federation citizenship (regardless of where the child was born);
(b) one of the child’s parents has Russian Federation citizenship and the
other parent is a stateless person, is declared missing, or if his (her)
whereabouts are not known (regardless of where the child was born);
(c) one of the child’s parents has Russian Federation citizenship and the
other parent is a foreign national, provided the child was born on the
territory of the Russian Federation or would otherwise become a stateless
person;
125
(d) both parents of the child who reside on the territory of the Russian
Federation are foreign nationals or stateless persons, provided the child
was born on the territory of the Russian Federation and the country
from which the parents come does not grant its citizenship to the child.
However, Article 3 of the 2002 Citizenship Law defines “residence” as
“lawful residence of a person within or outside the territory of the Russian
Federation,” which presupposes the presence of a permission for temporary residence or residence permits. The Russian Government regards a
large part of the population of the country as “illegal residents,” a category
which includes former Soviet citizens who legally entered the Russian Federation before entry into force of the 2002 Federal Law “On the Legal
Status of Foreign Nationals in the Russian Federation” (November 1, 2002),
and who live in the country without registration at the place of residence
and do not meet the requirements of the said new law on foreign nationals.
In accordance with the 2002 Citizenship Law it follows that the children of
persons regarded as “illegally residing” stateless persons cannot be recognized as Russian Federation citizens, and have no other legal means of acquiring Russian citizenship. Under Paragraph 2, Article 14 of the 2002 Citizenship Law, a child who is a foreign national or a stateless person shall be
granted Russian Federation citizenship in accordance with a simplified procedure (without meeting the requirements of legal residence, presence of a
“legitimate” source of income, knowledge of the Russian language) only if
one of the parents or the single parent of the child has Russian Federation
citizenship.
ARTICLE 25
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be conducted by secret ballot, guaranteeing the
free expression of the will of the electors.
The people of Russia is the source of her power, according to Article 3 of
the RF Constitution. Election legislation is there to ensure the representation of people’s interests in state power bodies. The rights to express one’s
electoral choice in a secret and free vote, and the guarantees of equality in
realizing suffrage are fixed in the RF Constitution and a number of federal
laws. The more important of those are “On Basic Guarantees of Electoral
Rights and the Right of Citizens of the Russian Federation to Participate in
a Referendum,” “On Ensuring the Constitutional Rights of Citizens of the
Russian Federation to Elect and be Elected to the Bodies of Local SelfGovernment,” and “On General Principals of Organization of Legislative
(Representative) and Executive Bodies of State Power of the Subjects of
the Russian Federation.”
In the recent years, starting with 1994, the election legislation is being frequently modified, with the law-making process becoming more intensive
following periodic federal elections to legislative bodies. Thus, the fundamental Law “On Basic Guarantees of Electoral Rights…” initially adopted
in 1994 after the election of deputies to the first State Duma of the Rus126
sian Federation in 1993, was revised in 1997, after the parliamentary election of 1995. Before the State Duma election in 1999 a specific federal law
modified it even further, and in May 2002 a new edition of this law was
adopted.
The need for the latest edition of Law “On Basic Guarantees of Electoral
Rights…” can be explained by the enactment of a new fundamental document, Law “On Political Parties” (2002), which was intended to introduce a
proportional system of elected deputies to regional legislative bodies. Besides, the last parliamentary election in Russia revealed shortcomings in
the existing legislation, which is significantly impaired as far as the realization of active and passive suffrage is concerned. The new edition of Law
“On Basic Guarantees of Electoral Rights…” provides additional guarantees
of the relevant rights, stipulates that a candidate can be de-registered only
by a court of law, sets deadlines for application to court in connection with
the annulment of a candidate’s registration and in connection with his/her
involuntary withdrawal before the voting day, and establishes the procedure for setting election commissions at all levels. The drafters of the law
believe that the latter innovation can essentially lessen the influence of
regional and local authorities on the election process.
In spite of the fact that election legislation is becoming more advanced and
mature, election campaigns are rife with violations. The reason for this is
the continued use of the so-called “administrative resource” or — as a
lawyer would put it — “the abuse of office or public authority.”
In order to attain the desired result in an election, the executive authorities in Russian regions pool both financial and ‘intangible’ resources (including the loyalty of law enforcement bodies, the mass media, election
commissions, judiciary, etc.). Under such conditions, a competitive election
often becomes impossible. For instance, the candidates running for governor of the Irkutsk region and their teams came under pressure from regional enforcement structures loyal to the actual governor, who himself
was running for re-election. This situation was specifically addressed by
the RF Ombudsman, and was subjected to slashing criticism by the Chair
of the RF Central Election Commission.
One of the basic principles, namely the equality of candidates, is being
breached.
The federal authorities are genuinely interested in a certain outcome in
regional elections. Sometimes, they interfere with regional pre-election developments, subjecting the opposing candidates to high pressure. In such
cases, the key roles can be played by the presidential plenipotentiaries in
federal districts. For instance, during the 2002 election for the presidency
of the Ingush Republic, the Office of the Plenipotentiary of the
RF President in the Southern Federal District coordinated efforts with enforcement, judicial, and other structures in order to ensure the election of
a candidate favored by the central authorities. Also, there are established
facts of unlawful and gross interference in court procedures, when documents on the de-registration of a candidate were taken right out of the
court’s retiring room.
Generally, courts are frequently used by the executive branch to deregister an ill-favored candidate. To note, in many cases such annulment of
registration occurs between just one and three days prior to voting. No
pressure on a court is admissible, so actions like that constitute a direct
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violation of Russian law and Russia’s international obligations in this field,
including under ICCPR. The voters, who originally wanted to cast ballots
for a de-registered candidate, have practically no time left to make a well
thought-out choice. Moreover, the de-registered candidate has no time to
appeal the court’s decision. A vivid example in this respect is the deregistration of V. Rutskoy (the then-governor of the Kursk region running
for re-election in 2000) just one day before election day in the gubernatorial election. To note, the issuance of the court’s decision in writing was
delayed by all possible means, thus preventing V. Rutskoy from appealing
before the voting started.
Election commissions are also subjected to pressure. In accordance with the
previous edition of Law “On Basic Guarantees of Electoral Rights…” (its new
edition is to be enforced country-wide starting June 14, 2003) election commissions were able to de-register a candidate and declare the voting results
null, which made them one of most powerful tools with regard to manipulating elections’ results. For example, the election commission of the Krasnoyarsk territory annulled the election of a candidate — representative of
the financial elite — who was opposing the regional executive elite in the
given election. This caused a lasting conflict between candidates. Appeals
were filed against the decision of the election commission in a local court,
who disbanded the commission. Then, the federal authorities who previously
abstained from openly meddling into the conflict, stepped in, and the
RF Supreme Court overruled the lower instance court decision, putting an
end to the argument. It seems that the RF President simply announced the
name of the winner, although it still remained unclear who actually won the
election, and what the real will of the people was.
Putting pressure on candidates, courts, and election commissions during
the registration period of candidates, primarily limits and violates the passive suffrage. At the same time, frequent violations of the campaigning
regulations, legally dubious visual propaganda materials, and pressure on
regional opposition media do not allow voters to get the necessary information about candidates. Due to such distortion of information, the expression
of the electorate’s choice becomes fictitious.
During the pre-election period, the authorities running for re-election often attempt to limit the campaigning possibilities of the opposition, manipulating with local mass-media. For instance, in the Primorsky territory
a local newspaper Chestnoye Slovo could not sell one its periodic issues,
since the main regional distributors refused to accept it for circulation
without specifying the reason, putting themselves in violation of their contract with the newspaper.
Local authorities often step up their anti-media activities as the election
period is drawing near. For example, the legislature in the Kirov region
thus banned the video coverage of its sessions, infringing the principle of
free dissemination of information. As the local lawmakers said, this measure was taken to prevent the dissemination of “non-constructive information” about the deputies, many of whom registered for re-election.
Searches at editorial offices, confiscation of papers, seizure of publications;
these are the means practiced during regional election campaigns once the
local executive authorities become involved. During the election campaign
for the presidency of the Republic of Tatarstan, the entire print-run of a
periodic issue of the Kazanskoye Vremya opposition newspaper was seized
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without a warrant. Observers noted that during campaign season no political advertisement promoting alternative candidates for presidency of the
republic could actually be seen (including posters and TV programs).
The dissemination of campaigning materials containing false information is
commonly practiced. Sometimes, it is the only way for certain candidates
to make themselves known during the campaign. Frequently, though, such
materials are used by those candidates who have practically obstacle-free
access to the media.
Campaigning leaflets overflow with fabrications regarding the activity and
biography of the candidates. Sometimes, openly xenophobic leaflets exploiting negative ethnic stereotypes are also used. In the city of Chita, for
example, anti-Chechen flyers were distributed on election day slandering a
local candidate. Flyers disseminated by the election staff of a candidate for
the State Duma, N. Bondarik, called everyone to battle against “Lord’s
enemies, enemies of Russia and the Russian people,” drive all non-Russians
out of Russia, nationalize all property from the “Jewish-Caucasian mob,”
and so on. What is more, the same N. Bondarik twice participated in televised debates on a St. Petersburg TV channel, where he bluntly discussed
the prospects of ethnic cleansing in the city. Appeals to the prosecutor’s
office were of no effect in both cases.
It is noteworthy that most campaign materials do not meet the election
code requirements; they are anonymous, bear no information on their origin, etc., and therefore, it is practically impossible to identify their authors,
buyer, and distributors. It is actual impunity that breeds the widespread
xenophobic and racist printing during election campaigns.
Campaigning sometimes extends through the official campaigning period
into the three days prior to voting day, when campaigning activity is
banned by law, and continues even on the election day. Although the procedural side of balloting is generally observed, pressure often mounts on
election commissions during voting and the counting of votes.
In an attempt to control the outcome of an election, methods such as bribery of voters and ballot rigging are commonly used. For instance, violations
in connection with counting of votes were observed in the Samara region
and in the Adyg Republic, while the election’s results in one of the constituencies of the Leningrad region were recognized as void due to the confirmed fact of the mass bribery of voters.
All in all, there are serious reasons to believe that the democratic nature of
elections in contemporary Russia remains in form only. The objectivity of
elections is questionable, as election campaigns become mainly the competition of “administrative resources” and that of the candidates and their
programs. In such circumstances, it is impossible to assert that the will of
the voters is expressed directly and genuinely.
ARTICLE 26
All persons are equal before the law and are entitled without any discrimination
to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, color, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.
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Paragraph 1, Article 19 of the RF Constitution states that “all people are
equal before law and in a court of law.” Paragraph 2, Article 19 establishes
that “The state shall guarantee the equality of the rights and liberties of a
human being and citizen irrespective of sex, race, nationality, language,
origin, property status and official position, place of residence, attitude towards religion, convictions, membership in public associations as well as
other circumstances. All forms of restriction of civil rights on account of
social status, race, nationality, language or religion are banned.” Under
Paragraph 2, Article 6 of the RF Constitution, “Each citizen of the Russian
Federation shall, in its territory, enjoy all rights and liberties and bear
equal obligations provided by the Constitution of the Russian Federation.”
Paragraph 3, Article 37 of the RF Constitution likewise states that “everyone has the right to... labor remuneration without any discrimination.”
The provisions of the RF Constitution in relation to the equality of rights
and liberties are reproduced in several legislative acts: the RF Civil Code
(general equality of persons participating in civil relations); the RF Civil
Procedure Code (equality of citizens before the court and the law); the
RF Family Code (ban on the restriction of rights relating to marriage and
family life on the ground of social status, race, ethnic origin, language, and
religion); the RF Criminal Code (equality before the law); Federal Law “On
the Fundamentals of the Civil Service of the Russian Federation” (equal
access to civil (public) service); Federal Law “On the Police ” (the principle
of equal protection of human and civil rights), etc.
The Federal Law “On Education” proclaims equal access to education, but
does not guarantee equal treatment in the course of the study process.
Federal Law “On Citizenship of the Russian Federation” adopted in 2002
also declares equal rights only for Russian Federation citizens, rather than
equal access to citizenship irrespective of race or ethnic origin. A number
of important legislative acts do not contain any provisions about equal
rights or a ban on discrimination. They include the RSFSR Housing Code,
Federal Law “On the Fundamentals of the Housing Policy,” Federal Law
“On the Fundamentals of the Federal Policy in the Field of Labor Protection” (it deals only with matters concerning physical safety), and Federal
Law “On Protection of Consumers’ Rights.”
While proclaiming the principle of the equality of rights and liberties, Russian legislation essentially does not contain a ban on discrimination, and the
use of the term “discrimination” is extremely limited. There are no legal
acts in the country which define discrimination. Apart from Paragraph 3,
Article 37 of the RF Constitution, the very term “discrimination” can be
seen only in the RF Labor Code, where it is used without definition and
explanation.
Paragraph 2, Article 19 of the RF Constitution does not contain a definite
ban on discrimination. Its first sentence cannot be interpreted as a clear
and unambiguous ban on any encroachment on the equality of the rights
and liberties, or as an obligation of the state to eradicate violations of
equality. The second sentence imposes a ban only on the “restriction of
rights,” only on five grounds and only in respect of citizens. Russian legislation and legal practice do not offer a definite interpretation of the concept of the “restriction of rights.” Moreover, Paragraph 3, Article 19 of the
RF Constitution and the RF Labor Code introduce the concept of “equal
opportunities for the exercise of rights and liberties,” which complicates
the practical interpretation of legal norms still further.
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Therefore, such concepts as “discrimination,” “restriction of rights,” “lawful or unlawful differentiation” remain insufficiently clear for professional
jurists and for the public at large. Neither can one trace any definite position of lawmakers and law enforcement authorities. Federal Law “On Appealing to a Court the Actions and Decisions Violating the Rights and Liberties of Citizens” and the corresponding provisions of the RF Civil
Procedure Code grant citizens the right to appeal a violation of their rights
and liberties to a court. By default, the law equates obstruction of the realization of a citizen’s rights and liberties, the unlawful imposition of any
obligation on a citizen, and/or his/her unlawful prosecution with the violation of rights. Nevertheless, in legal practice the same term “restriction of
rights” is understood primarily as the direct and open obstruction of the
exercise of concrete rights by an individual or by a social category of individuals. Unlawful differentiation which results in negative consequences
for a person or a group is not usually perceived as “discrimination” if it
cannot be defined as a direct violation of their rights (for instance, in the
exercise of discretionary powers, official control, or supervision).
In Russia, most legal norms relating to the assurance of the equality of
rights are material norms, and the legislation obviously lacks sufficient
procedural guarantees against discrimination. The country does not have
any special anti-discrimination laws, and the preparation and adoption of
such laws are not on the program of the legislative activity of the State
Duma. Neither does the country have any special anti-discrimination programs or programs in the field of provision of equal opportunities. There
are certain judicial, criminal, and administrative means to prevent and stop
discriminatory practices, but they are ineffective and are applicable only in
theory rather than in practice.
Theoretically one’s rights and liberties can be defended in court (Article 46
of the RF Constitution, Article 11 of the RF Civil Code). Civil rights and
other non-material values may be defended, among other things, by the
recognition of the right, reinstatement of the position which existed before
the right was violated, the stopping of actions which violate the right or
create a threat of its violation, invalidation of a disputed deal, invalidation
of an act of a government agency or a body of local self-government, compensation for losses, and compensation for moral harm (Article 12 of the
RF Civil Code). Article 1065 of the RF Civil Code provides that an activity
that may cause harm in the future may be banned by a court decision.
Federal Law “On Appealing to a Court the Actions and Decisions Violating
the Rights and Liberties of Citizens” and Chapters 23, 24, 25 of the RF
Civil Procedure Code (which took effect on February 1, 2003) guarantee
the right to submit a complaint against the action or omission of government agencies and municipal bodies, public associations and officials. This
can be done when:
(1) rights and liberties of an individual have been violated;
(2) the realization of rights and liberties is obstructed;
(3) obligations or responsibilities are unlawfully imposed on a person.
Several cases have been reported where people defended and restored
their rights which were violated as a result of discriminatory treatment.
Such cases usually concern unlawful dismissals, refusal of registration at
the place of residence, refusal to grant the status of a refugee or forced
migrant. The subject of the complaints or suits is simply a violation of the
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corresponding rights. The question of discrimination per se is not raised
and is not considered by the court as the subject of the complaint or a suit.
When a complaint of a violation of rights and liberties is considered, the
court’s motivation is based on the proven fact of a violation of a definite
right committed in breach of a definite law. The court does not consider
the question of whether there was a different approach to different persons in the same situation.
No court rulings on complaints are known which declare some decision,
demand, action or omission unlawful because of its discriminatory nature
rather than because it violated or restricted definite rights. Neither are
any complaints, suits, or court rulings known, which concern discriminatory behavior of government and non-government officials exercising discretionary powers or performing control or supervisory functions.
The RF Criminal Code contains Article 136, “Violation of the Equality of
Rights and Liberties of a Human Being and Citizen,” which establishes
criminal responsibility for “violation of the equality of rights of a human
being and citizen” on the ground of sex, race, ethnicity, language, origin,
property status and official position, residence, attitude to religion, convictions, membership in public associations, which harmed the “rights and
legitimate interests” of citizens. Paragraph 1 of this article provides for
punishments ranging from 200 minimum monthly wages to a two-year imprisonment. Paragraph 2 deals with the same crime committed with the
use of the official position and provides for a punishment of up to five
years of imprisonment.
Article 136 is not a private charge article and, consequently, criminal
prosecution may be initiated only by a prosecutor or by internal affairs
bodies. It defines crime purely in a material sense. Therefore, the violator
may be brought to criminal responsibility only if real harm has been done
to the victim; an instruction to carry out discrimination or incitement to
discrimination is not punishable if it is not public. Article 136 is applied in
extremely rare cases. As a rule, prosecutor’s offices are unwilling to initiate
prosecution and investigate cases under this article and under Article 282,
“Fomenting of Enmity,” of the RF Criminal Code. According to the data of
the Ministry of Internal Affairs,159 in 1997 three criminal cases were initiated under Article 136 in 1997, four cases in 1998, five cases in 1999 and
one case in 2000. The statistical data about the trials and their results has
not been published to this day.
None of the legislative acts of the Russian Federation directly provide for
some form of special disciplinary responsibility of civil servants for discriminatory behavior. Article 14 of Federal Law “On the Fundamentals of
the Civil Service of the Russian Federation” provides only for a general
disciplinary responsibility of the civil servant for improper discharge of
his/her duties, and contains a reference to the “responsibility under the
federal legislation.” There is no information that this possibility has ever
actually been used in the Russian Federation.
In the Russian Federation, there are no special federal or regional authorities responsible for the prevention and liquidation of discrimination. Theoretically, the RF Ombudsman may consider any complaint about the viola159
Response #34/4-220 of the Main Information Center of the Ministry of Internal Affairs to
the Inquiry of State Duma Deputy V. Igrunov, dated June 25, 2001.
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tion of human rights only after all other remedies have been exhausted, or
in the event of mass and regular violations. There are no signs that the
Ombudsman has ever concerned himself with the cases of racial or ethnic
discrimination. Neither are the problems of discrimination addressed by the
recently appointed regional Ombudsmen.
Article 52 of the RF Constitution states that “The rights of victims of
crimes and abuses of power shall be protected by law. The state shall secure access for victims to justice and compensation for damages incurred.”
Under Article 53, “Everyone shall have the right to compensation by the
state for harm caused by the unlawful actions (or omissions) of the bodies
of state power or their officials.” Material losses may be generally indemnified on the basis of civil suits. Moral harm can be compensated for in the
monetary form by a court decision on the basis of lawsuits (Articles 151,
1100 and 1101 of the RF Civil Code). However, the legislation does not provide for any special guarantees of this kind in case of discriminatory
treatment and there are no cases where the possibility of compensation of
the harm has ever been used in practice in case of discrimination. No administrative means are envisaged for individual defense and compensation.
Meanwhile, in reality, the state itself practices, encourages, and supports
discrimination on account of possession of identity papers, residence (registration at the place of residence), citizenship, ethnic origin, and membership in public associations.160 Private individuals and non-state structures
(mainly employers) likewise practice discrimination on account of skin
color, language, age, disability, presence of HIV, while the existing legal
mechanisms do not ensure the proper defense, and the state takes a passive stand and does not use the available possibilities.
The greatest public danger is represented by discrimination on account of
ethnic origin, which is largely the result of the existing passport system.
The passport system offers various overt and covert possibilities to refuse
registration both at the place of residence and at the place of stay. Under
certain conditions, the authorities may either deny registration to persons
who belong to a concrete ethnic group or create privileges for a concrete
group while restricting the registration of all others. The absence of registration is used as a pretext for restricting civil rights, and in a number of
cases these restrictions are applied selectively to definite ethnic groups. As
a rule, control over compliance with the registration requirements is also
exercised selectively. The restrictions and control procedures are largely
aimed against ethnic minorities. Discrimination is manifest in selective and
disproportionately frequent detention of persons belonging to so-called visual minorities (i. e., people who differ in appearance from the bulk of the
population, and usually identified as Caucasians and Central Asian as well
as Roma); unlawful and unprovoked use of violence in respect to detainees;
extortion of money; arbitrary and disproportionately frequent searches of
dwellings occupied by the persons belonging to such minorities or the offices of their companies; arbitrary seizure of the property or goods which
they sell. Thus, the Ministry of Internal Affairs regularly conducts the
campaigns called “Tabor” [“Roma Camp”] in various Russian regions under
the guise of the fight against crime. These campaigns usually include mass
checks of documents and searches of homes of people identified as Roma;
sometimes they are deported to the locality in the Russian Federation
160
See the sub-section relating to Article 2.1 of ICCPR in this report.
133
where they were last registered at the place of residence. In spring of
2002, such campaigns were conducted in Moscow and Moscow region, and
in the Samara and Tomsk regions. In July-August 2002, the operation was
carried out all over the country.
On October 16, 2001, the local police deported about 100 Roma from the
Krasnodar territory to the Voronezh region where they were registered at
the place of residence.
Particularly disturbing is the situation of Meskhetian Turks or Meskhetians. They are Turkic-speaking Moslem people who were deported from
South Georgia to Central Asia in 1944. Within the boundaries of the former USSR there are 290 000 Meskhetians. After ethnic clashes which took
place in 1989—1990 and in subsequent years, about 90 000 Meskhetians
were forced to leave Uzbekistan. About 60 000 of them sought asylum in
the Russian Federation (at that time — one of the constituent republics),
and more than 13 000 fled to the Krasnodar territory.
The regional authorities in the Krasnodar territory refused to grant residence permission (now registration at the place of residence) to the Meskhetian Turks. The Krasnodar territory is the only region in Russia where
the Turks are en masse deprived of the basic civil and political rights. They
cannot receive personal documents (such as a passport or a driver’s license)
or renew them if lost or damaged. Their marriages are not officially registered and recognized. The Turks are regularly denied access to justice: local judges refuse to consider complaints and statements of the Meskhetians
under various far-fetched pretexts. In many cases, there are reasons to
assert that the courts in the Krasnodar territory display a biased attitude
towards the Meskhetian Turks who tried to appeal against unlawful refusal by the local police to register them at the place of residence. Oftentimes, the courts delivered decisions against plaintiffs contrary to law. The
Turks are completely deprived of access to the social protection system and
free medical service. It is not possible for them to receive an education beyond a secondary education. The Meskhetians are regularly checked by the
police, including traffic officers, and fined for the absence of registration.
They are subjected to frequent “passport regime checks,” including
searches of their homes. Cases have been reported where the Meskhetian
Turks living in the Krymsk district were held in custody for some time.
Since 1992, the regional authorities officially single out the Turks as an
ethnic category subject to special discriminatory treatment. On April 24,
1996, the legislature of the Krasnodar territory adopted Resolution #291-P,
which obliged adult Meskhetians to go through a special registration procedure once every three months. Since that time, several more acts have
been adopted in the territory which establish special requirements for the
registration of Meskhetian Turks. In practice it meant that this ethnic
group was deprived of access to registration at the place of residence. The
same discriminatory treatment is accorded to the Meskhetians who received Russian citizenship and have registration outside the Krasnodar territory, but actually live in the Krasnodar territory.
The officials of the Krasnodar territory frequently state that they will create an unbearable living condition for the Meskhetian Turks and other “illegal migrants” so as to force them to leave the region. The RF President,
the RF Government, and the prosecutor’s offices do not react to the statements directed against the minorities and to unlawful actions of the gov134
ernment of the Krasnodar territory. Moreover, representatives of the RF
President’s Administration have repeatedly stated that there are no disagreements over the migration and ethnic policy between the federal
power and the authorities of the Krasnodar territory.
In recent years, people coming from the Chechen Republic, and ethnic
Chechens in general, have been subjected to various forms of discriminatory treatment. Since the summer of 1999, such actions quickly took the
form of a wide-scale coordinated campaign encouraged by the state. The
authorities demonstrated their intention to stop at nothing to make the life
of the Chechen population unbearable and oust the Chechens into Chechnya. Pressure was bore on the Chechens in various forms: arbitrary checks
of passports and personal documents; violent entry into premises, searches,
detention and beating; violation of the right to the liberty of movement
and choice of residence; systematic inspection of the business companies
which belong to ethnic Chechens; trumped up criminal charges; refusal to
grant the status of forced migrants; dismissal from jobs.
RECOMMENDATIONS
The drafters of the Alternative Report have elaborated with the following
article-by-article recommendations for the Russian Federation Government
in the sphere of observance of ICCPR.
ARTICLE 2
Introduce amendments to the 2002 Federal Law “On the Legal Status of
Foreign Nationals in the Russian Federation” to remove groundless restrictions and discriminatory provisions from the law, and add transitional provisions, which lay the basis for legalizing former Soviet citizens who resided de facto on the territory of the Russian Federation on the date the
law entered into force. In particular, ensure that this category of citizens is
granted legal status (residence permit) in accordance with the simplified
collective procedure.
Take measures to replace the passport system with another system of
identification and documentation of identity, which is not based on one
single identity-certifying document, and is not tied to the place of residence of a person. Ensure the possibility of exercising the rights and freedoms regardless of whether a person has the main document certifying
their identity and registration at the place of residence or stay.
Revise the legislation and law enforcement practices which lay the basis
for systematic ethnic discrimination, primarily the passport system and the
practices of the law enforcement authorities. Put an end to the systematic
discriminatory restriction of the fundamental civil and political rights of
persons belonging to certain ethnic minorities, primarily the Chechens and
the Meskhetian Turks.
Revise the policy in respect of the Cossack movement, strip the Cossack
organizations of their privileged status, such as privileged access of members of the Cossack organizations to civil and other public service.
Introduce norms into Russian procedural legislation, which shall:
•
•
impart legal significance to the resolutions of the UN Human Rights
Committee when criminal, civil, and administrative cases are examined;
provide mechanisms for the realization of the Committee’s decisions in
judicial proceedings.
Take measures, including legislative measures, to enhance the effectiveness
of the remedies, i. e., to make the national remedies more accessible, and
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create a mechanism of the enforcement of resolutions on the protection of
human rights adopted at the national and international level.
ARTICLE 3
Establish legislative measures to counter discrimination on the basis of sex
and to protect the victims of such discrimination; in particular, establish
responsibility for the use of discrimination on the basis of sex.
The RF Supreme Court should issue the necessary clarifications for cases
of discrimination on the basis of sex.
Take measures to orient the law enforcement authorities and other government agencies towards prevention of discrimination on the basis of sex
and protection of victims of such discrimination. In particular, work out
and adopt instructions for examination by the prosecutor’s offices of complaints against discrimination on the basis of sex.
ARTICLE 4
Introduce amendments in Federal Law “On Fighting Terrorism,” in particular, amendments providing for localization and short duration of
“counter-terrorist operations” and for mandatory imposition of the state of
emergency if there is a danger that the zone of operations of the power
structures or the duration of the operation may substantially increase.
With regard to the zone of the armed conflict in the Chechen Republic:
•
•
•
impose the state of emergency in accordance with the national legislation;
carry out derogation procedures provided for by the International
Covenant on Civil and Political Rights and by the European Convention
on Human Rights and Fundamental Freedoms;
admit the fact of an armed conflict and confirm observance of the
norms of international humanitarian law.
ARTICLE 6
In particular, considering the positive obligations of the Russian Federation
under the ICCPR, work out and introduce an effective system of measures
aimed at quick exposure of personal crimes, prevention of individual and
mass cases of deprivation of life, minimization of losses, effective investigation of personal crimes, etc.
Improve the conditions in closed structures, primarily in the army so as to
prevent the death of servicemen, primarily conscripts, in non-combat
situations.
Fully carry out the Views of the UN Human Rights Committee in the case
Lantsov v. Russian Federation.
With regard to the zone of the armed conflict in the Chechen Republic:
137
•
•
put an end to unlawful detention of persons, their confinement in unofficial secret prisons, torture and out-of-court executions;
carry out effective investigation of crimes committed in the zone of the
armed conflict in the Chechen Republic against civilian population,
primarily the crimes which resulted in the death of people, in order to
prevent their repetition.
ARTICLE 7
Amend the RF Criminal Code with an article criminalizing torture and ensure that the definition of torture in national law comply with the definition given in the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Transfer examination of complaints against torture, cruel and degrading
treatment to the competence of the regional-level prosecutor’s offices (as
opposed to the district-level).
Work out and adopt instructions for the prosecutor’s offices in connection
with examination of complaints against torture, cruel and degrading
treatment. These instructions must comply with the Principles on Effective
Investigation and Documentation of Torture and Other Cruel, Inhuman or
Degrading Treatment adopted by the General Assembly Resolution 55/89
Annex, December 4, 2000, and must include the list of mandatory investigative actions and deadlines for their performance.
Work out and adopt a state program for protection of victims of torture,
cruel and degrading treatment and for protection of witnesses against
pressure and persecution connected with the submission of a complaint or
giving of testimony.
Work out and adopt a state program for rehabilitation of victims of torture
and cruel and degrading treatment.
In all police precincts and pre-trial detention facilities display information
sheets explaining the rights of suspected and accused persons and detainees, including the right to submit complaints against torture, cruel and degrading treatment.
ARTICLE 8
Adopt a federal law on countering trafficking in human beings.
Adopt a federal target program and regional target programs of countering the trafficking in women, protection and rehabilitation of victims of
such trafficking.
Adopt a federal law on civilian oversight and administration of the military
organization in the Russian Federation.
Cause the authorities to recognize officially that trafficking in human beings, slavery and servitude are an acute and systemic problem of Russia.
Prevent emergency of conditions conducive to exploitation of forced labor in
connection with the tightening of the passport-visa and migration control.
138
Take effective measures to stop unlawful use of forced labor in closed
structures, primarily in the army.
Take effective measures against criminalization and involvement in trafficking in human beings of enforcement structures and special services
called upon to fight abduction of and trafficking in human beings.
Take effective measures to fight corruption in the law enforcement bodies,
which gives rise to trafficking in detained persons and human bodies in
the zone of the armed conflict in the Chechen Republic.
ARTICLE 9
Eliminate the widespread practice of keeping a person in custody without
lawful grounds. In particular, elaborate and implement into the law enforcement work a rule according to which a protocol of detention must be
drawn up immediately upon actual detention.
Radically change the practice of application of such an exclusive measure
of restraint as arrest. Use this measure of restraint in exclusive cases when
the exclusiveness of such cases has been confirmed and only if there are
legislatively established grounds for the use of this measure and the presence of such grounds has been duly documented. Take measures to ensure
a wider use of such alternative measures of restraint as bail, recognizance
not to leave, house arrest, personal guarantee.
ARTICLE 10
Ratify the Optional Protocol to the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment.
Adopt a federal law on civilian oversight in places of detention so that its
provisions comply with the principles set forth in the said Optional Protocol.
If a prisoner submits a complaint on torture, cruel and degrading treatment at the places of detention always make arrangements for transfer of
the complainant as well as witnesses to an institution under jurisdiction of
another territorial penalty execution department.
ARTICLE 12
Give a legislative definition of the liberty of movement and freedom to
choose residence; clearly define the limits of this right and exclude the
possibility of its arbitrary restriction by public authorities, non-state organizations and private persons; establish responsibility, including criminal
responsibility, for encroachment on this right.
Revise all laws and other statutory acts which lay the basis for the passport system. In particular, liquidate the institution of mandatory registration at the place of stay, abolish all federal and regional regulations interfering with the exercise of the right to the liberty of movement and
freedom to choose residence; abolish all regulations and stop the practices
which make the exercise of rights and performance of obligations condi139
tional on the possession of a passport and registration at the place of residence; abolish administrative responsibility for residence and stay without
a passport and registration and, as a first step, abolish the system of plan
targets established for the police with regard to the number of persons to
be brought to responsibility for committing administrative offences, including “violation of the passport regime.”
Revise Federal Law “On Legal Status of Foreign Nationals” in order to
grant all persons who are legally on the territory of the country the right
to the liberty of movement and freedom to choose residence. In particular,
abolish arbitrary restrictions on the liberty of movement and freedom to
choose residence for persons who have temporary residence permits. Ensure that the list of territories with regulated access for foreign nationals
be established only by a federal law.
Effectively guarantee the right of foreign nationals who permanently reside
in the Russian Federation to freely leave the country and, in particular,
abolish the institution of exit visa. Make arrangements for issuance of identity certifying documents and tickets recognized by the international community to stateless persons permanently residing in the Russian Federation.
ARTICLE 13
Take measures to stop expulsion from the country of foreign nationals and
stateless persons with no regard for and contrary to the procedures established by law and stop practices compelling them to leave the country.
Grant the persons to be deported the right to appeal the deportation decisions and ensure strict compliance with the principles of the protection of
the integrity of a family and non-refoulement — prohibition of forced return of persons to a situation where they are subject to a risk of serious
violations of human rights.
ARTICLE 14
Ensure implementation of the Views of the UN Human Rights Committee
on the cases against the Russian Federation considered by the Committee
(Gridin v. Russian Federation, Lantsov v. Russian Federation).
Ensure the real equality of the sides in the examination of criminal cases
by introducing amendments in the RF Criminal Code, namely:
•
•
•
•
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legislatively ensure the possibility of immediate access of the defense
counsel to a person kept in a pre-trial detention facility, without the
investigator’s or court’s permission;
legislatively provide for the duty of the investigation and court to accept the evidence submitted by the defense and obtained in accordance
with law;
ensure access of the defense to the evidence from the initial stage of
the criminal prosecution;
ensure the personal presence of the suspect, the accused, the defendant when his/her complaints are considered at all stages of judicial
proceedings;
•
change the working regulations of courts’ offices to enable the interested persons to gain speedy access to the necessary materials.
Ensure the principles of publicity of trials by reducing as much as possible
the list of cases to be tried in camera and making the relevant legislative
norms more concrete as the existing legislation allows abuse of this form of
judicial proceedings.
Abolish the institution of military prosecutor’s office and transfer all functions of the military prosecutor’s office to the civilian prosecutor’s office;
abolish the institution of military court and transfer all functions of military courts to civilian courts.
Upgrade the method of recording the trial proceedings in accordance with
the present level of technical development. For instance, make an automatic audio recording of the proceedings during the entire trial, then transcribe the recording and file the transcript and the recording with the materials of the case.
ARTICLE 17
Reform the operational-investigative systems (SORM-1, SORM-2) so as to
prevent unauthorized access of the law enforcement authorities to the
telephone network and electronic data transmission network.
Change the regulations on the oversight, primarily, judicial oversight, of
the use of the operational-investigative systems (SORM-1, SORM-2) by the
law enforcement authorities to prevent unauthorized access to the telephone network and electronic data transmission network.
Adopt a law on protection of personal data, including legislative assurance
of the right to access to information.
ARTICLE 18
The RF President and the top-ranking officials must display a political will
to ensure that the actions and statements of government officials concerning the freedom of conscience are guided exclusively by the federal laws
and international obligations of the Russian Federation rather than the
ideas of these officials about a special role of various religions and/or relations with concrete religious organizations. Any other line of behavior of
officials must entail disciplinary measures (if it does not constitute a more
serious offence).
The regional laws in the sphere of the freedom of conscience must be
brought in line with the federal laws.
The RF President, the RF Government and the RF Federal Assembly must
discontinue any attempts to interfere in the religious life by including in
the legal system such concepts as “traditional religion,” “ethno-confessional
balance,” “cultural-religious expansion,” etc. and concentrate on assuring
the equal right of religious associations to public profession of their beliefs.
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ARTICLE 19
Carry out privatization of state-owned mass media, including federal TV
channels.
Carry out privatization of state-owned enterprises engaged in the distribution of the press and take legislative measures to prevent monopolization of
the press distribution market.
Abolish the 10% VAT introduced in 2001 on the mass media and thus free
the mass media from this tax burden.
Eliminate the selective practices of subsidies and benefits for mass media.
ARTICLE 20
The RF President and the top-ranking officials must make public statements condemning concrete manifestations of racism, nationalism and
xenophobia and take political efforts to invigorate the activity of the lawenforcement authorities against persons and, particularly, organized groups
engaged in racist activities. Eliminate the practice of ignoring the racist
component in the investigation of crimes motivated by racial and ethnic
hatred.
Racist actions and statements must be legislatively declared incompatible
with the civil service at any level.
The legislation in this field must be modified so as to narrow the definition
of unlawful activity and, simultaneously, minimize the possibility of evading the responsibility for such activity. For this purpose it is important, in
particular, that the RF Supreme Court prepare detailed clarifications to
the current laws. The legislation must clearly differentiate between serious
sanctions for the most dangerous (primarily violent) racist crimes and less
serious, less dangerous offences. In particular, it would be useful to introduce fines in addition to warnings and liquidation as a penalty that can be
imposed on mass media.
ARTICLE 21
Adopt a law on peaceful assemblies.
Reduce the period for notification about a peaceful assembly from ten to
two days prior to the event, with the corresponding application to be considered by the appropriate authorities within one day.
Take measures, including legislative measures, to prevent arbitrary refusal
of a peaceful assembly based on a broad interpretation of provisions that
allow the right to such assemblies to be restricted in the interests of “national security.”
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ARTICLE 22
The RF President, the RF Government and the RF Federal Assembly
should speedily develop and adopt amendments to the following federal
legislation concerning the freedom of association and the work of NGOs:
•
•
•
•
•
•
•
the Tax Code, in its provisions concerning taxation of NGOs, to introduce exemption of grants from profit tax, VAT on free delivery of services and goods, income tax for recipients of NGO services and income
tax on compensation of travel and accommodation expenses for nonstaff participants of NGO conferences and other events;
the Civil Code, to allow all types of legally registered NGOs to receive
tax-exempt donations;
Federal Law “On Charitable Activity and Charitable Organizations,” to
expand the list of areas of activities considered charitable in purpose
and, therefore, subject to tax benefits;
Federal Law “On Foreign, Technical and Humanitarian Assistance,”
eliminating the requirement for recipients of such assistance to provide
a letter from local authorities agreeing to control expenditure of funds;
Ñriminal Procedure Code and Civil Procedure Code eliminating their
provisions banning participation of NGO representatives and lay defenders from the court process;
Federal Law “On Countering Extremist Activity” and Federal Law “On
Public Associations,” to annul their provisions enabling the Ministry of
Justice and prosecutor’s offices to suspend activities of NGOs without a
court decision; and Article 1, Federal Law “On Countering Extremist
Activity,” to make the definition of “extremist activity” more concrete
and focused.
In preparation of the above amendments, Russian public authorities
should cooperate with representatives and experts from NGOs and
welcome their recommendations and suggestions.
Prosecutors’ offices and the RF Prosecutor General’s Office in particular
should pay particular attention to the following manifestations of arbitrary
and illegitimate pressure on and persecution of NGOs by local and regional
authorities related to critical statements by NGO activists against the authorities and their reports about corruption, human rights abuse and other
violations, investigate such cases and provide necessary legal protection to
victims of abuse: unlawful interference in the work of NGOs; refusal in
registration; repeated checks of NGO activities aimed at paralysing their
work, eviction from office space; spreading defaming information; criminal
prosecution and criminal conviction of NGO activists; declaring NGO activists insane, subjecting them to forced psychiatric examination, forced
placement in mental clinics; threats of physical violence against NGO activists; detainment and beating by of NGO activists by police; dismissal of
NGO activists from work and university studies, etc. Special attention
should be paid to the situation of NGOs in the Krasnodar territory and the
Chechen Republic, where NGO activists are faced with most severe persecutions.
The RF President and the RF Government should make public statements
to the effect that policy of harassment and persecution of NGOs cannot be
tolerated and contradicts the RF Constitution and the principles of democratic society.
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The RF President, the RF Government and the RF Federal Assembly
should review provisions of the 2002 Labor Code limiting ability of trade
unions to effectively represent and protect interests of employees; for this
purpose develop and adopt amendments to bring the relevant provisions of
the Labor Code in compliance with ILO Conventions and allow trade unions to effectively represent employees in negotiations with employers, engage in collective bargaining, participate in labor disputes, organize strikes,
participate in the regulation of working conditions, have more power in
protecting employees from dismissal, and provide stronger guarantees to
trade union activists from dismissal in relation to their participation in the
union’s work.
Prosecutors’ offices and the Prosecutor General’s Office, in particular,
should pay particular attention to the instances of arbitrary and illegitimate pressure on and persecution of trade union activists by employers
related to activists’ participation in protection of interests of employees and
their labor rights, investigate such cases and provide necessary legal protection to victims of abuse: unlawful dismissal; threats of dismissal, demotion; decrease of salaries; promises of bonuses and increase of salaries for
stopping trade union activity; unlawful reorganisation of enterprises with
the purpose of eliminating a trade union; threats of physical violence and
beating of activists; other forms of pressure by public authorities against
trade unions, including eviction from office space, increase of rent, etc.
Courts in the Russian Federation should base their decisions on relevant
provisions of ICCPR and the RF Constitution when trying cases of violation
of freedom of association and persecution of NGOs and trade unions and
their activists.
ARTICLE 23
Develop a mechanism thereby a child, whose rights are violated by persons
or authorities authorized to protect him/her, could receive effective legal
assistance.
Ensure observance of the rights and protection of minors, stateless persons
and foreign nationals.
ARTICLE 24
Create a functional system of juvenile justice for protection of the rights of
juvenile offenders and other categories of children (including such issues as
upbringing in a family, property problems of minors, etc.).
Legislatively define the status of an adolescent participant in judicial proceedings and make provisions for rendering him/her legal assistance for
representation of his interests in courts of all levels.
Make all possible forms of protection accessible to children under the care
of the state.
Ensure registration of the birth of children regardless of whether their
parents have documents certifying their identity. Make real provisions to
ensure admission and registration of the first and the last name and the
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patronymic of the child regardless of whether the marriage of his/her parents has been registered.
Guarantee recognition of the Russian Federation citizenship of the child born
by stateless persons on the territory of the Russian Federation, regardless of
the nature of residence of these persons in the Russian Federation.
ARTICLE 25
Introduce uniform procedures for registration of candidates for election in
all regions of the country. The requirements of various documents to be
submitted for registration of a candidate must not differ in different subjects of the Russian Federation. In this connection, the rules for submission
as well as the list of such documents must be approved at the federal level.
Oblige the election commissions to ensure that the same (in terms of duration and place in the broadcasting schedule) free time is provided to all
registered candidates.
The election commissions should strengthen the control over the actions
and statements of candidates during the election campaign. The commissions must put on record all breaches of legislation, particularly the crimes
which come within Article 282 of the RF Criminal Code (fomenting of ethnic and religious enmity), abandon the practice of double standards when
the same offences are taken into consideration in connection with some
candidates but remain ignored in connection with some other candidates.
Warnings must be issued in accordance with the procedure established by
law for all infractions without exception.
The courts and the prosecutor’s offices must examine the cases and complaints connected with the electoral process with greater thoroughness and
promptness, particularly when decisions of election commissions barring a
candidate from participation in elections are appealed.
ARTICLE 26
Introduce amendments in the Russian legislation to ensure prohibition,
elimination of and punishment for a wider range of manifestations of discrimination than that provided for at the present time and, in particular,
introduce in the legislation the definition of direct and indirect discrimination as well segregation, incitement to discrimination, coercion into discrimination and support of discrimination. Impose a direct ban on discrimination in such fields as housing relations and education of all levels.
Introduce amendments in the RF Civil Procedure Code and the 1993 Federal Law “On Appealing in a Court the Actions and Decisions Violating the
Rights and Freedoms of Citizens” in order to make it possible to submit
complaints to a court against any kind of direct and indirect discrimination
and segregation per se (even in the absence of a direct violation or restriction of some definite right).
Introduce amendments in the procedural legislation to enable public organizations to file suits relating to discrimination and fomenting of enmity,
for protection of an indefinite circle of persons.
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Stop persecution of the Chechens in the whole country and punish its initiators and participants. Defend the rights and freedoms of people belonging to the Chechen minority, in particular, the right to the liberty of
movement and freedom to choose residence, the right to labor and education. Stop attempts to forcibly return the Chechens or compel them to return to Chechnya and put an end to creation of obstacles to receipt of
identity papers by the Chechens.
Stop persecution of the Meskhetian Turks in the Krasnodar territory and
punish its initiators and participants. Introduce an accelerated and simplified procedure for assurance of a legal status and rights of people belonging to this group. The collective legalization of this group must include:
•
•
•
recognition and defense of their right to ownership of immovable property;
their recognition as Russian citizens in accordance with Article 13.1 of
the 1991 law “On Citizenship of the Russian Federation;”
their registration at the place of residence.
Considering numerous reports about fabrication of criminal cases against
persons belonging to ethnic minorities, review the cases opened under Article 222 (unlawful transfer, sale, storage, carriage or possession of arms,
ammunition, explosives and explosive devices) and Article 228 (unlawful
production, acquisition, storage, carriage, sending or sale of narcotic drugs
of psychotropic substances) of the RF Criminal Code. Set free and rehabilitate persons arrested and convicted on trumped up charges, compensate
them for the harm which they suffered, and punish the officials responsible for such fabrications.
II
SITUATION OF MOST
VULNERABLE GROUPS
AND MINORITIES
DISCRIMINATION AGAINST WOMEN
INTRODUCTION
Historically, the women’s and human rights movements existed in the USSR within
the confines of the same social phenomenon — Soviet dissent that in 1960—1980
united all champions of individual rights and freedoms. The dissident community
was principally open, uniting representatives of a wide variety of movements. All
of them employed human rights ideology/rhetoric in their respective struggles.
The severe pressure exerted by the communist regime forced Soviet dissenters to
stay together. Then, the regime’s fall opened opportunities for the assertion of basic
human rights values and active work to find solution to various problems previously identified during the period of dissent. As a result, a once solid community
broke into issue-based segments. However, in spite of the transformation of Russian
society over the past ten years, discrimination and violations of human rights, including those of women, remain common today. The understanding that individual
efforts of each segment of civil society are not sufficient to achieve significant success in this sphere has encouraged the Moscow Helsinki Group (MHG) and 20 regional women’s organizations to undertake joint actiions geared to address this
problem.
This is how the “Monitoring of the Situation with Discrimination against Women in
Russia,” program, an important step towards consolidation of the women’s and
human rights movements, was conceived. The unification of the women’s and human rights movements will enable Russian civil society to have a stronger impact
on the policy of power structures, decision-making process, and public opinion. In
addition, it will help solidify civil society in Russia.
The program was implemented from May 2002 through April 2003 with financial
assistance from the UK Foreign Office Human Rights Projects Fund. It had two
primary goals:
1.
2.
To carry out the first specialized monitoring with regard to the situation of
discrimination against women with a significant number of RF subjects simultaneously.
To create an effective network of women’s organizations united by horizontal
links and working experience that will be able to continue monitoring the position of women’s rights and freedom from discrimination in the future and implement other projects in this sphere as well.
The monitoring effort was conducted based on a model developed by the Moscow
Helsinki Group, in which the Moscow organization acts as coordinator and developer of the common methodology of monitoring. The UN Convention on Elimination
of all Forms of Discrimination against Women (CEDAW) was placed at the core of
the monitoring methodology, which is in full harmony with the accepted principles
of human rights monitoring. CEDAW is a document that outlines international legal
obligations of the state with respect to the said problem.
Regional women’s organizations have prepared reports on the situation with discrimination against women in their respective provinces. On the basis of these reports and the data obtained from the transcripts of focus-groups and interviews
151
conducted in the regions, the Moscow Helsinki Group compiled this synthesis report, entitled Discrimination against Women in Contemporary Russia.
This work does not claim to be a global and comprehensive report but it does offer
an overall assessment of the situation as well as outline the main problems and
trends. Therefore, the monitoring effort focused not on the identification of a large
number of concrete facts of discrimination and detailed examination of individual
cases of violation of women’s rights in connection with discrimination, but on the
information obtained through application of sociological methods that provides for
an overall picture of those problems that are most acute and are viewed as the
most relevant by the target group. It also allows one to assess the attitude of representatives of various organs of government towards these problems.
In the synthesis report, we did not touch upon the overall situation on the federal
level since we had not conducted any research activity of our own on that subject.1
We merely summarized and analyzed regional data, referring to the national context only when necessary to understand the problem.
On the whole, the given monitoring effort represents the first step towards systematic monitoring activity on this subject, which regional women’s groups carry
out.
This approach was of principal importance to the Moscow Helsinki Group, since
from the start we have been careful to ensure that our work not overlap with that
of women’s NGOs, and especially with that of large specialized research centers.
The report fully relies upon the information collected by women’s organizations in
the regions, and the Moscow Helsinki Group acted exclusively as a methodological
and training center in the sphere of human rights monitoring, as well as the compiler of the synthesis document.
The primary objective that we had in mind and that, in our opinion, we have achieved,
was to facilitate the professional growth and capacity building of regional women’s
NGOs, as well as to enhance their status in the eyes of the authorities and society.
At the close of the monitoring effort, we surveyed our regional partners to evaluate how the monitoring activities they conducted with the assistance of the Moscow
Helsinki Group had affected their respective situations, if at all. Having analyzed
the responses of the women’s groups, we can state that for the majority of the organizations involved, the program’s implementation resulted in a notable increase
in press coverage. The materials collected by these organizations during the monitoring effort were novel in Russia. Seeing this, local journalists started actively replicating that information and turning to women’s NGOs for more data and assessments. The very fact of their participation in a large interregional project under
the auspices of the Moscow Helsinki Group led local authorities to pay closer attention to their activities and cooperate. In addition, the NGO’s, now armed with statistical data and analysis proving their issues relevant, gained a great deal of credibility with their local governing bodies. Leaders and representatives of the NGOs
began to receive invitations to take part in high profile panel discussions and conferences. Monitoring activities also helped attract youth to regional women’s organizations and open discussion groups on their premises. For a number of organizations, this work has become an incentive for more active participation in the
political life of the region, and in particular, in the election process.
All the regional project participants emphasized that the program provided them
with an opportunity to master a complex methodology that will enable them to
continue their monitoring activities in the future. The organizations largely noted
that conducting interviews and focus groups will prove an invaluable skill in soliciting information, from both authorities and the general public.
1
Such activities are carried out, for example, by the Consortium of Women’s Nongovernmental
Associations and the Moscow Center for Gender Research; we tried to avoid duplication in this
project.
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Most important for us is the fact that the regional women’s organizations have apparently developed a taste for monitoring activities and have begun to use the tool
of monitoring as the basis for effective protection of women’s rights and promotion
of the women’s movement. The program has prepared women’s organizations in
the regions for systemic cooperation with international mechanisms for human
rights protection. For women’s NGOs, this work has been a trial step in preparation
for participation in the compilation of a comprehensive alternative (nongovernmental) report on Russia’s compliance with CEDAW. The respective UN Committee will
consider the next (sixth) Russian report in the relatively near future; women’s organizations have yet to submit a well-rounded review of Russia’s observance of all
of its obligations under the Convention.
This will be possible only with the collaboration of many organizations, organizations that are not only adequately qualified but also experienced in human rights
monitoring. We hope that competent Russian women’s NGOs will organize the
preparation of an alternative to Russia’s sixth periodical report and that our regional partners in this program will take an active role in this process.
Finally, we are confident that our program has assisted women’s and human rights
NGOs in achieving a qualitatively new level of cooperation. Monitoring activities,
compilation of alternative reports to treaty bodies, and overseeing state observance of
recommendations of international authorities constitute a real platform for interaction
among human rights and women’s organizations on a day-to-day basis. Moreover,
constant close collaboration between NGOs of various backgrounds is the only way to
consolidate and strengthen the position of Russian civil society.
* * *
Thus, we are proud to present the report Discrimination against Women in Contemporary, based on results of a broad interregional monitoring effort.
In the course of collecting data on discrimination against women in various territories, regional monitors conducted surveys, interviews and focus-groups. At the current stage of civil society development, in which Russian NGOs still face the problem of limited resources for monitoring activities and the unwillingness of state
agencies to provide detailed information, sociological methods of research assume a
particularly important role as they allow NGOs to obtain primary data on the realities of particular human rights issues as well as identify releant key problems and
trends.
The women’s organizations involved in the given effort conducted focus groups
with women in their respective regions, with each focus group’s participants also
filling out a detailed questionnaire. They also carried out a series of expert interviews: one with a male deputy of the regional or local legislature, one with a female deputy of the regional or local legislature, one with a deputy-member of the
legislative committee targeting women’s issues, and one with a staff-member of the
relevant bodies within regional administrations.2 Also, in those regions where our
partner-organizations were most experienced, the organizations conducted their
own surveys and used the collected data in their monitoring reports (for example, a
survey of employers in the Irkutsk region, a survey on domestic violence in the
Republic of Tatarstan, a large survey in the Rostov region, etc.).
Close comparison and analysis of several different types of data (statistics, official
replies of regional and local state institutions to the monitors’ inquiries, factual data
collected by the monitors, expert assessments given by NGO representatives, survey-questionnaires, transcripts of interviews and focus groups) enabled the authors
of the regional and synthesis reports to make specific conclusions on the situation
of discrimination against women in Russia. The program covered only 20 out of 89
regions of the Russian Federation, so we have no formal grounds to state that our
2
Legislative committees addressing women’s issues have various titles. One example is
“Committee on the Affairs of Family, Motherhood and Childhood.”
153
conclusions are applicable across Russia. However, taking into consideration that in
20 very different regions very similar problems have been identified, we are practically certain that the patterns we outline and the conclusions we make in this
report are relevant for the country as a whole.
The report is not an article-by-article commentary to CEDAW. However, relying on
the Convention’s articles, we identified ten subject blocs that comprise the main
problems in the observance of obligations imposed by this international treaty on
the Russian Federation. These blocs correspond with the first ten sections of the
report. Two concluding sections of the report are dedicated to the problems of domestic and sexual violence and opportunities to solve them. These subjects do not
fall within the confines of the Convention but are so painful from the viewpoint of
Russian women that the MHG and the regional groups involved in the given effort
decided that we could not afford to leave them alone.
In addition, we deemed it worthwhile to supplement the report with an overview
of international legislation in the sphere of discrimination against women and an
expert essay on the issue of discrimination against women in Soviet and Russian
law. The latter subject deserves special attention for a number of reasons. At the
turn of the 20th century, Soviet Russia became the first state in the world whose
Constitution guaranteed equality of men and women. Later, this principle was further developed within Russian legislation. Nevertheless, the problem of de facto
discrimination against women had been a relevant one throughout the entire history of the USSR and remains one significant in contemporary Russia. Moreover,
the situation of women in Russia today is worse than in Western countries, which
introduced the sex equality principle in their legislation later — in some cases decades later — than Russia had. In her article “Road to Equality: the Problem of Discrimination on the Grounds of Sex,” L. Zavadskaya, a prominent lawyer and one of
the leading Russian experts on the problem of discrimination against women, has
attempted to provide an explanation to this phenomenon.
Finally, we included into the report a special overview of the human rights situation of women in the Chechen Republic as the problem faced by women in this
conflict zone deserve a separate treatment
RECOMMENDATIONS
OF THE MOSCOW HELSINKI GROUP
AND REGIONAL WOMEN’S
NONGOVERNMENTAL ORGANIZATIONS
BASED ON THE MONITORING FINDINGS
When regarding the subject of discrimination against women in the contemporary Russia, it should be taken into consideration that although the
ban on discrimination (including gender-based discrimination) is incorporated into Russian legislation from the RF Constitution to federal and regional laws, the actual situation is characterized by a lack of mechanisms
providing for implementation of these norms, reinstatement of rights of
discrimination victims, and criminal proceedings against perpetrator . Note
that the majority of government representatives do not view the prohibition of discrimination as main object of their work. This applies to genderbased discrimination as much as it does to any other sort of discrimination.
The key factor is that discrimination cases, including those related to gender-based discrimination, are practically absent in Russian courts. The lack
of standard criteria in judging whether discrimination has occurred in each
concrete case deprives the victim of an opportunity to successfully prove
the fact of discrimination. Courts, in turn, refuse to accept such lawsuits
and tend to insist on the rewording of writs (instead of discrimination —
violation of a certain right).
Also, no improvement of the situation of women’s rights as well as with
gender-based discrimination is possible without the development and implementation of a large-scale multi-level educational program on gender issues. The monitoring has persuasively demonstrated that the society as a
whole and, most importantly, women themselves regard the problem primarily in terms of violation of social guarantees; women maintain a variety
of gender-related stereotypes that complicate the perception and acknowledgement of discrimination.
The state undertakes multifaceted efforts in order to improve the social
status of women but practically all of these efforts neglect the aforementioned fundamental problems, which make it possible to assert that Russia
does not fulfill its obligations, first and foremost with respect to provisions
of Article 3 of the UN Convention on Elimination of all Forms of Discrimination against Women, which reads as follows:
States Parties shall take in all fields, in particular in the political, social,
economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the
155
purpose of guaranteeing them the exercise and enjoyment of human
rights and fundamental freedoms on a basis of equality with men.
Based on results of the monitoring effort conducted by the Moscow Helsinki Group and its regional partners, the following recommendations have
been developed.
RECOMMENDATIONS
I. To Legislative Authorities
•
•
•
•
•
•
•
•
Adopt the Law “On State Guarantees of Equal Rights of Men and
Women in the Russian Federation.”
Adopt the Law “On Countering Domestic Violence.”
Amend the Tax Code to provide for benefits for women entrepreneurs.
Publicize reports on the implementation of The Federal Concept of
Legislative Activity Targeted at the Provision of Equal Rights and Opportunities to Men and Women.
Involve women’s NGOs in legislative activities in order to account for
the gender perspective.
Adopt the Law “On Suppressing Sexual Harassment.”
Adopt the Law “On Suppressing the Trafficking of Women.”
Amend the legislation to provide for safety measures for victims of
domestic and sexual violence, periods of investigation, and court
proceedings.
II. To Executive Authorities
•
•
•
•
•
•
•
•
•
156
Publicize reports on the implementation of federal and regional Programs “On Improvement of the Status of Women.”
Adopt federal and regional programs on protection and rehabilitation
of victims of domestic and sexual violence including an adequate number of consulting centers and shelters for victims of violence.
Adopt federal and regional programs targeted at elimination of trafficking in women and protection and rehabilitation of trafficking victims.
Provide necessary financial support to the already existing crisis centers, including nongovernmental ones, as well as shelters for victims of
domestic violence.
Develop and adopt a federal educational program on gender issues in a
joint effort with NGOs.
Make all possible efforts to pay all arrears on social benefits and prevent payment delays in the future.
Actively interact with international bodies monitoring gender-based discrimination and reviewing complaints, first and foremost with the UN
Committee on Elimination of all Forms of Discrimination against Women.
Cooperate with NGOs to draft objective periodic reports to the UN
Committee on Elimination of all Forms of Discrimination against
Women.
Publicize all periodic reports of the Russian Federation to the UN Committee on Elimination of all Forms of Discrimination against Women, in
particular the upcoming Sixth Periodic Report, as well as recommendations of the Committee to the Russian Federation.
•
Develop a program to eliminate remuneration- and promotion-related
discrimination in the workplace and implement it at the federal and
regional levels.
III. To Political Parties
•
•
Establish quotas in party election lists, including for the top three
places on the list.
Amend party programs to include a section on gender policy.
IV. Regarding Education and Awareness-Raising
•
•
•
•
•
•
•
Introduce gender issues into educational programs and modify relevant
textbooks.
Introduce a gender equality aspect into social science programs in secondary schools and institutions of higher learning.
Introduce an obligatory training course for state employees, employees
of law enforcement agencies, and other officials on inadmissibility and
suppression of discrimination against women and sexual harassment.
Introduce an obligatory training course for employees of law enforcement agencies and health care institutions on the protection of women
victims of domestic violence, sexual violence, and sexual harassment.
Introduce obligatory training courses for judges on legal protection of
victims of discrimination, in particular gender-based discrimination, as
well as domestic violence, sexual violence, and sexual harassment.
Introduce obligatory sexual education courses for students in secondary
schools.
Facilitate enlightenment of the population on gender issues and form a
respectful image of women by financially supporting relevant publications in the mass media.
V. To Mass Media
•
•
•
Initiate educational and awareness-raising publications as well as television and radio programs dedicated to the issues of gender equality,
protection of women from discrimination, domestic violence, sexual violence, and sexual harassment.
Facilitate the formation of a positive image of women in power, politics, and professional and public life.
Prevent the humiliation of women and dissemination of stereotypes
and opinions contradicting the gender equality principle in mass media
materials (such measures can include the development of a relevant
code of ethics).
VI. To the Judiciary
•
•
Judicial bodies should provide a separate line item in their reports to
account for statistics related to discrimination-related cases.
The Supreme Court should provide detailed explanations of the existing counter-discrimination legislation, especially in the sphere of labor
relations.
VII. To the Healthcare Industry
•
Significantly increase financial support for gynecological and obstetric
facilities and care.
157
•
•
•
•
Publicize a detailed list of gynecological and obstetric services that
health care institutions must provide at no charge.
Organize programs and permanent centers for distribution of contraceptives among youth.
Organize anonymous reproductive health clinics for youth.
Ensure that any woman with a state medical insurance policy must be
unconditionally granted medical assistance in any public health care institution regardless of the patient’s registered place of residence.
VIII. For the Penitentiary System
•
•
•
•
Provide quality reproductive health services and equipment to women
prisoners.
Actively apply legal norms which call for mitigation of criminal penalties and undertake to reevaluate imprisonment terms for women with
small children.
Develop and adopt a legal provision ensuring that children born in
penitentiary facilities live with their imprisoned mothers.
Ensure that all imprisoned women serve their sentences in regions of
their permanent residence.
IX. For the Department of Labor
•
•
•
Have the burden of payment for childcare benefits and subsidies lie
directly with the state social security system.
Incorporate provisions ensuring delivery of existing benefits for pregnant women and mothers of small children into the obligatory form of
employment contract.
Enforce labor-related legislation that prevents discrimination in the
employment process.
X. For Law Enforcement
•
•
Enforce the law with respect to protection of victims of domestic and
sexual violence, as well as in the protection of victims of discrimination.
Develop instructions for police officers on ethical treatment of victims
of domestic and sexual violence.
XI. To Women’s Rights NGOs
•
•
•
•
158
Engage in dialogue with federal, regional, and local authorities and
with mass media.
Carry out information campaigns and public events dedicated to gender issues in cooperation with not only women’s but also human rights,
youth, ecological, and other NGOs.
Organize workshops and training sessions on gender issues for human
rights, youth, ecological, and other NGOs, as well as for representatives
of mass media.
Enhance cooperation with international human rights protection agencies, in particular by developing alternative reports on Russia’s observation of its obligations related to discrimination, including genderbased discrimination.
DISCRIMINATION AGAINST WOMEN1
DISCRIMINATION AND LEGISLATION
The ban on gender-based discrimination lies at the heart of federal legislation.
According to Article 19 of the RF Constitution, “the state shall guarantee
the equality of rights and liberties regardless of sex” (Paragraph 2), and
“man and woman shall have equal rights and liberties and equal opportunities for their pursuit” (Paragraph 3).
In addition, Paragraph 5, Article 15 of the Constitution provides that “if an
international treaty of the Russian Federation stipulates other rules than
those stipulated by the law, the rules of the international treaty shall apply” (including the UN Convention on Elimination of All Forms of Discrimination against Women (CEDAW) ratified by the USSR in 1980).
The RF Labor Code (Article 3), the RF Family Code (Paragraph 3, Article
1), the Criminal Code (Article 4) and other normative acts contain provisions forbidding gender-based discrimination. However, results of the
monitoring effort conducted by Russian regional human rights organizations under the aegis of the Moscow Helsinki Group a few years ago
clearly demonstrated that “in spite of the abundance of legal norms banning discrimination, no mechanism has been put into place to account for
their enforcement; in particular, no concrete sanctions are stipulated in
connection with violation of relevant provisions.”2
Practically nonexistent are normative documents designed to directly counteract discrimination or provide for mechanisms to eradicate discriminatory
practices and reinstating violated rights. Draft laws containing such provisions do not find enough support among legislators.
For example, the amendment to Federal Law “On Basic Guarantees of
Electoral Rights and the Right of Citizens of the Russian Federation to
Participate in a Referendum” banning electoral lists of candidates consisting of more than 70% of individuals of the same sex failed to garner
enough votes when considered by the deputies of the State Duma on April
26, 2002, and therefore was never included in the law.
It is important to note that violations of human rights in Russia are linked
not so much to faults with the legislation, which on the whole complies
1
Report Based on the Findings of a Monitoring Effort Conducted by the Moscow Helsinki
Group and Women’s Groups in 20 Regions of the Russian Federation
2
“Report on the Observance of the Rights of Women in the RF,” Human Rights in Russian
Regions — 1999 (Moscow: Moscow Helsinki Group, 2000, p. 239).
159
with international standards, but rather to unlawful practice and lack of
effective protection mechanisms.
It is not surprising, therefore, that in the course of the given monitoring
initiative conducted by regional women’s rights groups, no legislation discriminating against women or targeted against discrimination were identified in any of the 20 regions surveyed.
Currently, it is only the legislation aimed at improving of the status of
women (including the national and regional plans of “actions targeted at
the improvement of the status of women and enhancement of their role in
the society,” adopted in only some regions of the Russian Federation),
which can be characterized as evolving.
It is telling that the majority of the representatives of executive and legislative authorities interviewed in this monitoring effort failed to name a
single concrete normative act protective of women, even though some of
them did refer to documents that were supposed to directly facilitate (but
usually facilitated indirectly) the improvement of the status of women.
Responses of representatives of two regional administrations to the question
“which normative acts securing the rights of women have been adopted in
the region over the past year?” can be used to back up the argument above.
A Kaliningrad representative said:
Currently underway in the Kaliningrad region is the development of
draft documents on family well-being; under consideration are issues related to interaction with women’s organizations. It is assumed that [these
organizations] will take part in the implementation of the programs.3
And according to a Stavropol representative:
The Stavropol territory has adopted an action plan to implement the National Action Plan on the Improvement of the Status of Women and Enhancement of their Role in Society #855-p approved by the Government
of the Russian Federation on June 28, 2001, designed to be implemented
until the end of 2005. Normative acts regulating the payment of child
benefits, organization of summer camps for children and adolescents,
and the development of a network of social institutions catering to families and children are geared to one degree or other to secure women’s
rights in the territory.4
In addition, the very topic of discrimination against women is not viewed as
relevant by legislators. According to a deputy of the Moscow City Duma,
T. Portnova, “over the past year [2001] the Moscow City Duma did not deem
it necessary to adopt special acts regarding any type of discrimination against
women.”5
The position of the Murmansk Regional Duma appears to be even more
eloquent:
3
Interview with the head of the Division on Family, Children, and Adolescent Affairs of the
Health Care Department of the administration of the Kaliningrad region.
4
Interview with the deputy-head of the Department on Social Protection of Families, Maternity, Fatherhood, and Childhood of the Ministry of Labor and Social Protection of the Population of the Stavropol territory.
5
Interview with a female deputy, Moscow.
160
The Charter of the Murmansk region and the Agenda of the Murmansk
Regional Duma do not account for examination of issues related to discrimination against individuals of either sex or regulation of their legal
status. Legislative activities of the regional Duma in the social sphere are
targeted at the protection of interests of all residents of the Kolsky transpolar area. Therefore, there are no documents in the regional legislation
that discriminate against women. The Regional Duma has no information about violations of women’s rights or participation of deputies in
the examination of such issues.6
Analysis of the legislation of “Actions Targeted at the Improvement of the
Status of Women and Enhancement of their Role in the Society” to identify gender-based discriminatory provisions in the implementation of regional plans showed that these plans were effectiveonly to a small extent.
Thus, on May 30, 2000, the government of the Penza region adopted Resolution #306-p “On Analyzing Legislation of the Penza Region in Order to
Verify Observance of the Rights of Women as Provided for by the UN
Convention on Elimination of all Forms of Discrimination against Women.”7
Another such example would be the activities geared to encourage women
holding managerial positions and women-entrepreneurs: for example,
Resolution #31, “On Activities Associated with Preparation for Participation in the All-Russian Forum “Women-Entrepreneurs of Russia,’” and
Resolution #330, “On Organization and Conduct of the Regional Contest
“Woman-Manager of the Year 2001,” adopted by administration of the Kaliningrad region on February 1, 2002, and August 22, 2001, respectively.
All in all, the results of this monitoring effort once again demonstrated
that anti-discrimination legislation is essentially non-existent in Russia.
DISCRIMINATION AGAINST WOMEN IN ELECTIONS
According to the national legislation, women enjoy the right to run for
office on a par with men. Nevertheless, the proportion of women in
representative bodies as well as in administrations at various levels
remains low, especially in comparison to Western European countries.
The proportion of women in the RF State Duma’s current (third)
convocation is 8%. Plus, over the past ten years the percentage of female
deputies in the State Duma has been decreasing.8
The proportion of women-deputies in legislative bodies of those regions of
the Russian Federation covered by the given survey varies from 19% in
the Karelia Republic to 0% in the Novosibirsk region.
This level is higher in representative bodies of local self-government. At
the district level, women-deputies constitute 33% in the Kaliningrad9 and
Kurgan regions, and 19% in the Rostov region. On the whole, these indicators tend to be even higher at the municipal level. For example, the pro6
Reply to an inquiry of the Murmansk Regional Duma #01-28/870D, signed by Acting Chairman of the Murmansk Regional Duma, O. Alekseyev, dated September 7, 2002.
7
However, as we have already mentioned, Russian legislation does not contain laws that directly discriminate against women
8
The proportion of women in the State Duma’s first session (1993—1995) was 14%. In the
second (1995—1999) — 10%.
9
Note that this is 3.5% higher than in the previous assembly.
161
portion of women deputies in all representative bodies of local selfgovernment both in the Stavropol territory10 and in the Kurgan region
amounts to 40%.
Very few women hold elected office within executive agencies. In Russia,
there is not a single female head of regional government. Women appear to
head administrations in small towns and settlements only. For example, in
the Kaliningrad region, women head administrations of two out of 22 municipalities (the town of Pionersky and the Cherniakhovsky district). In the
Kurgan region, women head two out of 22 district centers.
Thus, it is apparent that women do not exercise their right to hold an office to a significant extent. Factors accounting for this situation were identified in the course of expert interviews and focus groups conducted within
the framework of the given monitoring effort.
To note, it is not only female legislators, but also the majority of the surveyed male legislators who maintain that representation of women in organs of government is insufficient.
Out of 12 deputies only three are women, i. e., 25%. One of them presides
over the Committee on Taxes and Dues; another one heads the Committee on Social Issues. I think that women are poorly represented.11
Also:
Women are practically not represented in regional bodies.12
At the same time, the interviewees and the focus groups participants very
rarely raised the issue of increasing the level of representation of women
among deputies and elected administration heads. It is also important to
mention that according to the majority of the surveyed male deputies,
women should be better represented in government not because women
should have more opportunities to exercise their rights, but because they
are capable of solving certain problems (mostly related to social issues) that
men are unable to handle adequately. To quote:
Should there be women in legislative authorities, then certain things, especially the social bloc, would be tackled more persistently than with
men only.13
Also:
Women more actively respond to social problems, to vulnerable population groups.14
Women legislators were quoted as saying the following:
By virtue of their natural integrity, women work to achieve concrete results in the economic and social spheres. It is a consequence of their
physiological peculiarities and the function in society. In view of the role
that the woman plays in society (that of the mother), she is responsible
10
This indicator grew by more than 8% as compared to previous elections, as in the Kaliningrad region.
Interview with a male deputy, Altai territory.
12
Interview with a male deputy, Krasnodar territory.
13
Interview with a male deputy, Voronezh region.
14
11
162
for the family and therefore, she does not play but works for the benefit
of her cause. The woman makes more balanced decisions based on the interests of the population and available budget. The man is focused on
moneymaking and quasi-political abstractions. The woman advances the
cause: the budget is for those who live on it.15
Also:
Having gained power, the woman effectively solves societal problems:
children, families, pensioners.16
The democratic principle of power formation has been also referred to by
female legislators. For example:
If women constitute one half of the electorate their proportion in bodies
of power should be approximately the same.17
Thus, the prevalence of men within organs of government is perceived as
negative due to their ineffectiveness in addressing social issues and solving
other pressing problems of government:
Power is men, as a rule, and they are, in my opinion, greatly distanced
from women’s problems.18
Note that on the whole, the issue of electoral rights did not appear to be of
paramount importance to the focus groups participants. Generally not one,
and only very rarely more than one of the participants in each group mentioned this problem in their responses. Responding to the question “What
in your opinion is of paramount importance for the protection of women’s
rights?” focus groups participants chose the option “access to/participation
in power” noticeably less often than such options as “child benefits” or
“employment.”
Focus group participants frequently viewed the underrepresentation of
women as additional evidence of discrimination.
Achieving anything will be very difficult since the power, money, everything belongs to men.19
Also:
Men are everywhere, in every office, in high positions. And they do not
tolerate women above them. It is obvious from our power structures.20
This most likely is associated with the general disappointment of Russian
society with the institution of elections and its lack of trust in representative bodies.21 Still, practically all the women respondents and the majority
15
Interview with a woman deputy, Kaliningrad region.
Interview with a woman deputy, Krasnodar territory.
17
Interview with a woman deputy, Kurgan region.
18
Focus group, Udmurt Republic.
19
Focus group , Stavropol territory.
20
Focus group, Pskov region.
21
According to the survey commissioned by the Central Election Commission’s Research Center that was conducted in summer of 2000, not more than one fifth of the voters trusted that
elections conducted in the regions were fair. However, 30% of the voters also believed the
institution of elections to be of paramount importance for transition of power.
16
163
of the surveyed men share the opinion that representation of women
among deputies as well as other elected positions should increase.22
We discovered in focus groups that women are discouraged from seeking
political positions by the tough and sometimes overtly criminal nature of
political life, illegal campaigning tactics, and indirect advantages that men
have in the political process.
So why would she want to do it [put forth her candidacy for office]? To
have her private life exposed? To have her kids followed and threatened
and other things like that? Women think first of their children.23
Also:
It seems that wealthy women do not go into power because there is too
much criminal activity [in politics]. They simply fear for their lives. And
they do not believe that they can actually change anything in there. Look
at the Governor of Magadan — so much strength there was in that man,
and where is he now? Take a woman example —Galina Starovoitova.24
Yes, such examples are very, very numerous.25
Also:
Unfortunately, there are but a few women in power. Not all the women
are capable of campaigning on par with men, considering the fact that
they are indeed women.26
Also:
Even if she breaks through and gets there, she will be humiliated by men
even if she is a high class professional, which men will never acknowledge.27
In terms of obstacles that women encounter when seeking political authority, female legislators most frequently refer to the fact that financial opportunities for women and men running for deputy are not equal.
When women lose elections they do it only because they lack money, because any election of course costs money.28
This statement is supported by quantitative data. According to the election
commission of the Stavropol territory, the average election fund of male
candidates who participated in the 1999 State Duma Election for the Stavropol territory was six times larger than that of a female candidate
(358,000 rubles and 56,000 rubles, respectively).
The majority of women candidates do not represent any influential political or business interests, which also significantly diminishes their chances
22
It should be noted here that the majority of the surveyed deputies, regardless of their gender, are against introduction of a system of quotas to increase the number of women deputies.
23
Focus group, Voronezh region.
24
Galina Starovoitova, a renowned democratic leader and parliamentarian, was murdered in
November 1998.
25
Focus group, Voronezh region.
26
Focus group, Karelia Republic.
27
Focus group, Smolensk region.
28
Interview with L. Savochkina, Deputy Chairperson of the Social Policy Committee of the
Saratov Regional Duma.
164
of success, especially considering the manipulative nature of contemporary
Russian democracy.29
That’s exactly what I was told — “you are honest, we’ve been watching
you, but you weren’t anyone important.”
Also:
I am constantly asked whose interests I represent as a candidate. Well,
those who have won are all directors of open joint-stock societies — those
who can be used, who can be manipulated.30
At the same time, male candidates tend to resort to illegal and openly
criminal methods when campaigning against women candidates for legislative or executive office.
For example, in January 2002, G. Fomenko, candidate for head of the
Cherniakhovsky district (Kaliningrad region), informed the press that ten
days prior to the second round of elections she had been attacked by an
unknown man. Threatening violence, the attacker demanded that she
withdraw her candidacy.31
Chairperson of the Penza Regional Duma, S. Pinishina, also confessed in
her interview to the local television channel in March 2001 that she had
been frequently threatened over the telephone during and after her election campaign for a Duma position; the offender was demanding that she
stop her political activities.
Mass violations of election law with respect to women candidates also took
place in 1999 in the Rostov region during the State Duma election campaign.
Administration of the village of Bagayevskaya of the region exerted pressure against representatives of a public organization that campaigned in
support of women candidates, demanding that the candidates end their
campaigns.
One week prior to election day, the director of the fifth channel of the Novocherkassk television (also, Rostov region) denied a woman candidate airtime for which she had paid, on the premise that he had never seen
documents proving the payment. Once the election was over, the assets
paid for the airtime were returned to the candidate.
Negative campaign materials (so-called “black PR”) are also used against
women-candidates quite extensively. In 2002, during Saratov Regional
Duma election, a flier was issued against one of the female candidates containing the following image: a woman riding a camel to the Duma across
the Saratov bridge. Above and below the drawing were the inscriptions:
“We will go, we will race” and “Who’s footing the bill?”
A similar situation took place in Moscow. In that case, a woman-candidate
faced an overtly discriminatory attitude. L. Adamskaya, member of the
Sviblovo district council of the city of Moscow described her experience:
29
See “Right to Periodical Change of Power through Elections,” Human Rights in Russian
Regions (Moscow: Moscow Helsinki Group, 2002).
30
Interviews with women candidates. Quoted from regional report of the Saratov region.
31
G. Fomenko won the election, having collected 46.6% of the votes in the second round. She
is now heading the Cherniakhovsky district for the second consecutive term.
165
When I ran for the district council for the second time I held only one
public meeting. That proved to be enough. I conducted no more meetings
and I won. I collected 20% more votes than the then-head of the district
council. Why so many? Because 24 hours prior to the moment when all
the campaigning was to be stopped a flier was issued saying that I belonged to the Jewish-Masonic Lodge, that I was a street leader, and that
years back I had infected and now continue to infect young people with
bad diseases… We had a conversation with the head of the Sviblovo district police department, who told me that I had to understand that, street
leader or not, women and politics were two incompatible things. It
turned out that the then-head of the district council gave the following
order, “If L. Adamskaya makes it to the district council now, the Prefect
will come over and say that we will have to elect the council head from
among district councilors. She is in my way. Something has to be done.”
And the cable TV studio joined in to make up a story about me… But the
voters, having looked at that flier, then made their choice in a way that
the district council head had never counted on.
On the whole however, overt discrimination against women, both in the
form of negative campaigning built on sexist stereotypes and in government, is seen rather infrequently.
Authors of regional reports conclude that the small number of women
candidates for office and the still smaller number of successful women are
primarily due to their inadequate financial and administrative resources as
compared to those of men.
THE RIGHT TO PARTICIPATE IN GOVERNMENT
AND PUBLIC SERVICE
Under Russian legislation all citizens are entitled to enjoy an equal right to
participate in state governance and to have equal access to public service
regardless of gender (Articles 19 and 32 of the RF Constitution, Article 21
of Federal Law “On Public Service”). No direct constraints on women’s
right to participate in public affairs or to hold public positions have been
recorded either before or in the course of this monitoring effort.
Nevertheless, real involvement in governance is better determined by how
many women occupy positions that influence federal, regional, and municipal policy.
In the monitored regions, female participation in representative bodies remains insignificant, thus barring them from influencing state policy.32
However, at least half of the legislators (both men and women) interviewed noted more women in executive offices.
There are more women in executive agencies and they shoulder most of
the executive workload. With elected positions the situation is different.
Women are kind of reluctant to assume legislative power.33
32
33
See the section “Discrimination against Women in Elections.”
Interview with a female deputy, Republic of Karelia.
166
Also:
Female representation in executive agencies is broader than in legislative
bodies.34
This opinion is supported by statistical realities. In the Altai territory,
women account for 56% of all public servants; in the Republic of Komi —
77.8%; in the Rostov region — 70.4%; in the Tula region — 65.5%; in the
Udmurt Republic — 72.4%.
However, it should be noted that when we refer to female participation in
representative bodies we are referring specifically to legislators, while on
the other hand participation in executive agencies includes positions at all
levels, including those with relatively little influence. Statistics show that
women rarely occupy powerful executive offices: in the Rostov region,
women occupy 12.5% of “highest” and 39.4% “chief” positions; in the Tula
region — 30% and 54.5% respectively; in the Penza region, there isn’t a
single woman occupying a “highest” position and only 9% occupy “chief”
positions.
Small wonder that legislators describe female representation in executive
bodies in the following way:
Female secretaries, employees, department heads in education and health
care account for 60%. In the course of my work, I communicate with
women from this category.35
Also:
Women are practically not represented in the power agencies. Especially
in the executive branch at the level of municipality administration and
at the region level. In fact, we haven’t a single female directorate head or
region administration deputy head.36
Also:
In Karelia, we have only two female ministers in the executive branch
(Minister of Culture and Minister of Education); but in general, lots of
women are working in different ministries and in local governments.37
Also:
In the executive power bodies, there are no women heading a department.38
Apparently, such a situation is brought about by a set of reasons including
a biased , stereotype-based attitude on the part of males:
The woman is destined to give birth to babies but not to manage her
family. It is the man who plays the main role. The man, driven by his
hormones, is a real leader and fighter, whereas a female leader is an ex-
34
35
36
37
38
Interview
Interview
Interview
Interview
Interview
with
with
with
with
with
a
a
a
a
a
male deputy, Rostov region.
male deputy, Kaliningrad region
female deputy, Voronezh region.
female deputy, Republic of Karelia.
female deputy, Kurgan region.
167
ception. Males are top managers — it is in there nature. The woman is
an assistant.39
A female legislator noted:
In the executive agencies, leading positions are predominantly occupied
by men. Women occupy secondary, insignificant positions because they
are not promoted. Their career development is hampered.40
Actual discrimination manifests itself not only in the positions women can
occupy but also in terms of the recognition they receive:
When we were attending a gala-meeting to celebrate the 65th anniversary
of the Rostov region I noticed that hardly one-fifth of those honored with
various commendation letters and certificates were women. According to
my count, out of 50 people honored there were only five or six women.41
THE RIGHT TO EQUAL ACCESS TO EDUCATION
Russian law provides all citizens, irrespective of sex, with the right to receive basic general and high vocational education, and equal opportunity to
compete to receive higher education (Article 43 of the RF Constitution,
Article 5 of Federal Law “On Education”).
In Russia, the educational level of women is higher than that of men:
63.8% of women have higher, incomplete higher, or high vocational education, while for men, this indicator stands at 50.8%.
At educational institutions of different levels, half or more of all students
are girls or women: 50.2% at general education schools (57.3% in high
grades), 55% at high vocational schools, and 56% in high schools. Notably,
the numbers of male and female students is about the same at schools requiring payment.42
The information contained in the regional reports based on the monitoring
findings confirms the national statistics. In the Irkutsk region, 55% of university and institute students and 59% of high vocational students are
women; in the Karelia Republic, the respective numbers are 59% and 41%;
in the Penza region — 51% and 53%.
So on the whole, it is possible for women to exercise their right to education without discrimination.
This is also confirmed by the interviews conducted within this monitoring
effort, where female interviewees described education as a field in which
the principle of equality between men and women is observed:
I think that in our country women’s right to education is honored, at
least in schools of higher learning.43
39
Interview with a male deputy, Kaliningrad region.
Interview with a female deputy, Krasnodar territory.
41
Interview with a male deputy, Rostov region.
42
Information from the Ministry of Education of the Russian Federation. Materials of the
Academic Expert Seminar “Equality of Genders in Russia: Laws, Policies, Practice,”held in
Moscow on February 26, 2002.
43
Focus group, Tula region.
40
168
Also:
I think that the only right actually observed is the right to general high
education.44
However, the field of education is not totally free from discrimination
against women.
The situation is at its best in the institutions of general education. Still, it is
important to note that, contrary to Article 10.c of CEDAW, authorities in
some regions support schools that practice segregated education. The number of such schools remains small, but the practice persists.
For example, in Syktyvkar, Komi Republic, a gymnasium (specialized
magnet school) for women, according to its teachers, is significantly inferior to regular schools in the area. Y. Borisov, Chairman of the State Council of the Komi Republic that sponsors the female gymnasium of Syktyvkar, declared at a meeting at this school, “The important thing is how
many of this school’s graduates got married and not how many of them
became university students.”
Minister of Education of the Stavropol territory “is actively promoting segregated education at high schools, with patriarchal social roles integrated
in the process of education and general upbringing.”45
It is mostly boys, though, that do not attend general schools. In Novocherkassk, Rostov region, girls accounted for only 20—35% in this category of
children.
Some ethnic minority groups are notable exceptions to this rule. In certain
communities, parents do not allow girls to finish high school, guided by
patriarchal views about gender roles. In Meskhetian Turk46 families of the
Rostov region, for example, boys go to school until grade 9,47 after which
they are supposed to help their parents at family farms, while girls only
complete grade 6 or 7. Parents explain that, according to their ethnic traditions, a woman is only a mother and a housewife. The same applies, to a
lesser extent, to girls from Chechen families.48
We have already shown that the proportion of women at schools of higher
learning is greater than that of men. This situation is, however, laden with
discrimination in the processes of admission and selecting a specialization.
Still alive at schools of higher learning are concepts of gendered professions.
Thus women encounter prejudice from members of entrance exam commissions and university professors when they apply to certain departments:
The right to education is observed, but not in full. In some departments,
young women do not have the same rights as young men. When I wanted
to become a student of the university’s physics department, I was openly
told that girls are not welcome to specialize in this field.49
44
45
46
47
48
49
Focus group, Stavropol territory.
The official number for Meskhetian Turk population in the Rostov region is 17 019 people.
To note, complete general education is 11 years (grade 1 through grade 11).
The official Chechen population in the Rostov region is 9 433 people.
Focus group, Saratov region.
169
The influence of gender stereotypes is clearly manifested in those regions
where most schools of higher learning are oriented toward the so-called
“male professions.”
In the Kaliningrad region, four of the six state institutions of higher education,50 are the Institute of Law of the Ministry of Internal Affairs, the Military
Institute of Border Guards, the Baltic Academy of Government, and the Naval Institute. The authors of the regional report for Kaliningrad objectively
identify this as the core reason why, contrary to statistics in the rest of Russia,
the proportions of women and men among the region’s students are 33% and
67%, respectively.51 During a focus group held in this region, its female participants spoke more actively and with more conviction about discrimination
against women in admission to schools of higher learning:
Three years ago, my daughter became a university student. In admission,
preference was given to young men. This was openly declared by the Dean.52
Also:
It is a problem for girls to become university students, for instance, of
the Baltic Academy of Government.53
Discrimination against women in admission to universities is also based on
other considerations:
I was trying to become a student of the History Department of St.Petersburg University. At the end of the entrance exams, a young man
and I had equal scores. I was told that they would take him and not me,
because I was likely to have children.54
Also:
I faced discrimination when I became a university student. A male professor gave men higher marks because we had fewer men in our group
than women.55
Also:
When we were trying to become students of the Academy, competition
for our field of specialization was very tough. However, there were far
more female applicants than male ones. So, at the entrance exams, girls
had to get two A’s to be admitted, while boys were admitted even if they
had two C’s. We were told that boys had better potentials and they were
to take positions of power in the future.56
In the course of their university studies, female students also encounter
prejudice by professors:
50
It is state schools that provide free education.
Data for the 2000/2001 academic year.
52
Focus group, Kaliningrad region.
53
54
55
Female student of the Rostov State University. Data from a poll conducted in 2001 by the
“Women of Don” NGO.
56
Female student of the Novocherkassk Academy of Melioration. Data from a poll conducted
in 2001 by the “Women of Don” NGO.
51
170
In our department, many professors, both male and female, dislike female students. I study electrical engineering, and this field is considered
purely male. And even young female professors who graduated from the
university with a degree in this field mistreat girls. They clearly give
girls lower marks if compared to boys.57
Also:
At the Journalism Department of the Rostov State University, in my
class, we have about 70 girls and 10 boys. Male professors tell us that
journalism is not a women’s job as it requires strength and a profoundly
analytical mind, as if those were exclusively male features.58
As we have already mentioned above, stereotypes influence not only admission and academic results, but the selection of the field of specialization
as well:
Personally, I think that central to women’s rights is the right to choose
any profession. For instance, at our medical school, girls are not allowed
to choose surgery as their field of specialization.59
Also:
At medical school, as far as graduate studies are concerned, in most
fields of specialization boys are preferred over girls. For fields like surgery, only boys are accepted. Girls are generally viewed as future general
practitioners.60
THE RIGHT TO EQUAL OPPORTUNITY
IN ACCESS TO EMPLOYMENT
Under the new Labor Code of the Russian Federation adopted in 2001,
“every person shall have equal opportunities to exercise his or her labor
rights. No person may be restricted in his or her labor rights or freedoms or
receive any privileges irrespective of sex, race, color, ethnicity, language,
origin, property or social status, position, age or any other circumstances unrelated to his or her professional skills.”61 However, at present even official
documents contain evidence of a broad practice of discrimination against
women in employment: “approximately every executive or chief official
points out that for purposes of employment, preference is given to men.”62
In the course of interviews conducted in 20 regions of Russia in the given
monitoring effort, numerous employers admitted discrimination against
women in employment and openly declared that if they had a position
opening and more than one competent women claimed it, they would give
57
Female student of the Southern Russian Technical University. Data from a poll conducted
in 2001 by the “Women of Don” NGO.
58
Female student of the Rostov State University. Data from a poll conducted in 2001 by the
“Women of Don” NGO.
59
Focus group, Rostov region.
60
Female student of the Rostov State Medical University. Data from a poll conducted in 2001
by the “Women of Don” NGO.
61
Article 3 of the RF Labor Code, “Prohibition of Discrimination in Labor Relations.”
62
Concept of Improving the Situation of Women in the Russian Federation (as approved by
Resolution #6 of January 8, 1996 of the RF Government).
171
preference to married women in the 30—35 age bracket with children
older than five years of age. For example:
In employment, I look at professional skills in men and at age in
women.63
Virtually all female participants in the focus groups conducted in the regions either had faced discrimination in employment themselves or heard
about such instances from their female friends or acquaintances, and demonstrated firm conviction that discrimination against women in employment exists:
The general feeling is very strong that the place for a woman is in the
kitchen. We do not have equal employment opportunities with men; they
always have the advantage.64
The data collected in the course of the monitoring effort reveals the driving factors of such discrimination.
Russian society has retained the old stereotypes of “male” and “female”
professions, fields of specialization, and positions. In many cases, employers
reject female candidates and hire male candidates on this basis. Among
government-operated organizations, this applies most to the army, law enforcement agencies, and health services:
Girls are not admitted into higher military schools. They cannot enlist in
the police. For a long time, the police department has been posting ads
inviting men under 31 to apply. It appears that men are not interested,
and women are not admitted. 65
Also:
I tried to get a job in Rostov as a nurse at a military hospital where salaries were higher than in civilian hospitals. I was denied the position and
told that only men are accepted. Why? I can give injections at least as
well as men can, possibly even better. A friend of mine dreamed of becoming a surgeon. In the end, she did become a surgeon. However, it was
far more difficult for her to reach her goal than it was for any guy, although her knowledge was far superior.66
Such discrimination also occurs in other fields, although less frequently:
Certainly men have an advantage. Even in our Committee [the Regional
Government Committee for Physical Culture and Sports] they prefer
men, since they believe that men know more about sports67.
Stereotypes about male and female jobs mar entire professional fields:
With us technicians, there is a distinction between men’s work and
women’s work. And if I am more interested in a “men’s” position, it cannot be taken for granted that I will get it.68
63
64
65
66
66
67
68
Regional Report “Discrimination against Women in the Tatarstan Republic—2002.”
Focus Group, Stavropol territory.
Ibid.
Focus Group, Rostov region.
Focus Group, Tatarstan Republic.
Focus Group, Pskov region.
Focus group, Moscow.
172
Also:
When he needed to hire someone to work in the archives, our department
head [male] said that we’d better get a man. We asked him why. No reply. And certainly, the computer programmer can only be a man.69
Also:
I know that as a person working the field of engineering I will always
come across situations in which men will initially enjoy preferential
treatment.70
Characteristic of private businesses is the widely spread practice of specifying the sex of the would-be employee in vacancy ads:
Managerial positions are more often offered to men. Even in the ads they
write: looking for a male manager.71
When private businesspeople deny jobs to women, they are often guided
exclusively by their own views and prejudices. In most cases, they give no
explanation to the rejected female candidates.
Instead, employers sometimes express their sexist view quite openly:
I am the owner of this company, and that says it all. You know, decisions fall on the guy who pays the bills. Women are life’s flowers and,
with my money, I want to make sure there are only young and pretty
girls in my company.72
Moreover, if a man and a woman both want to take a job at a facility traditionally staffed by women (where men, as a rule, would not work because of low salary options or because of the widespread conviction that it
is not a “man’s job”), the male applicant would still receive preferential
treatment:
Schools prefer men, as schools are mostly staffed by women and men are
clearly in short supply.73
Also:
If a young man and myself are considered for the same position at
school, given we have similar degrees and academic records, they would
be more willing to take him and not me.74
In particular, discrimination by employers against women under 30 years
of age and women with small children paint a telling picture of the situation of women in Russia as a whole. Plus, these two groups of women face
considerably more discrimination than other groups.
Russian law provides for a range of social benefits and allowances for
pregnant women and mothers of small children; some provisions place the
responsibility for these benefits and allowances squarely on employers.
However, trying to cut costs in the currently unstable economic environ69
70
71
72
73
74
Focus group, Novosibirsk region.
Focus group, Krasnodar territory.
173
ment, owners and managers of private businesses deny jobs to women who
have small children or are likely have them in the future.
Naturally, [a young woman] will not be hired. She would take leaves to
take care of her sick baby, and generally the management will have to
think about making arrangements for the children’s summer vacations,
take into account her family life.75
Employers admit that in order to protect themselves against problems of
this kind they ask women to fill in a questionnaire that includes such fields
as “married/unmarried,” “children/no children.” Those questions are also
asked during job interviews:
My sister tried to get a job when she was in the third month of pregnancy (at that point, it wasn’t visible). She was immediately asked
whether she was married. When she answered in the affirmative, she
was told, “Sorry, ma’am, we do not need these kinds of workers.”76
Also:
Yelena N., an employee at a co-generation power plant in the Southeastern
administrative district of Moscow, was surprised that when she was applying for her position she was asked to fill in a questionnaire that contained, among others, a field asking her to indicate whether she was “married, unmarried, [or] divorced” next to the field asking if she had children.
Yelena wondered what the practical difference was between “unmarried”
and “divorced.” The Chief of Human Resources told her, “A divorced
woman is not likely to want to get married again soon, unlike an unmarried woman, so she would give more of her time to work rather than to
her family. She won’t need to take leave to care for her sick child, either.”
As we see, employers consider a set of factors, including whether the
woman is a divorcee and whether she has children. Clearly, preference is
given to divorcees with no children over single or married women.77
Since the public sees ages 20—30 as the years in which women are most
likely to get married and give birth, employment discrimination against
women in this age group is widespread.
Notably, both employers and working women are sure that private companies are unjustly burdened with obligations to working women, for which,
they say, should be entirely the responsibility of the government:
The government is trying to unload these problems onto businesses and
private people. There must be a national policy in place to take care of
these things.78
Pregnant women are most disadvantaged when looking for work:
When you are pregnant, it is impossible to get a legal and permanent job,
I know it from my own experience. I had to cheat to get a job and hide
my condition.79
75
76
77
78
79
Regional Report “Discrimination against Women in Moscow—2002.
Focus group, Penza region.
174
Frequent sick leaves and possible maternity leave (which often may result
in a loss of certain professional skills) are the main reasons why women are
less successful in the labor market. These reasons are listed by interviewed
employers among “shortcomings” of female employees.
As a result, when an employer has to make a choice “between a man and
a woman, the man gets the job, because he will not at least take a maternity leave.”80
The practices of hiring women informally and adding a clause in women’s
inoficial contracts forbidding pregnancy for a certain period of time are
also becoming widespread .
Even governmental agencies frown upon young women in hiring, and a
private business would never hire a young woman. If they were to hire a
woman, they would only do it unofficially, without documentation, so
that they could fire her at any time.81
Also:
My elder sister works. She recently got married and she was warned that
she should wait to have children since the [her employers]y had invested
in her, trained her, promoted her and things like that.82
Also:
The first questions when I came to ask for a job were, “Are you married?” “Are you pregnant? When do you plan to get married and give
birth?”83
Also:
It feels weird that in a job interview they would inquire about your kids’
ages, about their health, whether they are often ill. You have to, as it
were, justify yourself, tell them that no, the kiddies are not ill that often,
and if they are, we have someone to look after them.84
Also:
My sister graduated from college, a month after that she got pregnant
and got a job in a private business. She had to go and work for a private
business after she was rejected by a municipal company. I think that
there was no formal contract between her and her private employer.85
Also:
A female participant in the focus group noted a recent case with her close
friend, she had been asked to sign a contract that contained a provision
that she could not give birth five years from the date of the contract.86
80
81
82
83
84
85
86
Focus group, Murmansk region.
Ibid.
Focus group, Rostov region
Regional Report “Discrimination against Women in the Komi Republic—2002.”
175
Also:
Recently, the following violations have become more frequent: the employer offers an employment contract containing a provision that there
will be no pregnancy within three years87.
Another female participant in the focus group noted a recent case in which
her close friend had been asked to sign a contract that contained a provision prohibiting pregnancy five years from the date of the contract.88
It should be noted that female employers, contrary to the popular opinion,
hardly differ in this regard from their male counterparts. Female employers interviewed in the course of the monitoring effort also showed no
readiness to comply with legislative requirements regarding benefits and
allowances to pregnant women and mothers, albeit admitting that such
treatment constituted discrimination:
I want to speak from my perspective as a boss. Pregnant women and
women with little kids are a problem for employers. On the one hand, I
am angry that the rights of this category of women are violated, but, on
the other hand, I myself would not employ a pregnant woman.89
Also:
If it is a private company, then it would most likely use the same type of
employment contract as I use, one with no paid leave and no paid sick
leave. If you get a guaranteed job, then the company would make payments to the pension fund, payments toward sick leaves and things like
that.90
Also:
My husband does not want to employ women with little kids, especially
single parents. Who would do her job? There are no back-ups. We hired
one single woman with a little kid on the condition that her parents will
provide care to the kid, since the kid goes to nursery school and will
probably be sick often.91
In the view of the drafters of the Concept of Improving the Situation of
Women in the Russian Federation:
The presence in labor laws of such provisions as the prohibition of work
at night; restrictions on many different types of work; limitations on
working hours, restrictions on travel, limitations on overtime; the general
orientation of law toward protection of a working mother rather than a
parent irrespective of sex; and the lack of a well-thought-out system that
differentiates between the needs of different categories of women in
terms of social protection all undermine the demand for female labor
and enhance the likelihood of discrimination against women.92
87
Regional Report “Discrimination against Women in the Kurgan Region—2002.”
Regional Report “Discrimination against Women in the Komi Republic— 2002.”
89
90
91
92
Concept of Improving the Situation of Women in the Russian Federation (as approved by
Resolution #6 of the RF Government dated January 8, 1996).
88
176
The Russian labor market as a whole discriminates against persons of preretirement age. Women over 40 are particularly badly affected. According
to data provided by monitors from Karelia, “in the total scope of registered
unemployment, the share of pre-retirement age women is higher than that
of men of the same age (17% and 12%, respectively).”93 Research by the
Moscow Center for Contemporary Political Studies confirms that “women
over 40 years of age are more likely to be rejected by employers than men
in the same age group.”94 Women’s rights activists from the Irkutsk region
include this group among those “particularly vulnerable in the labor market.” In their view, the “privilege” granted to women by the government
of an earlier retirement age than men’s actually presents an additional
employment problem for those women who have great professional potential, willingness to work, and financial need.95
Thus, women can realistically compete with men in the labor market only
in the 30—40 age group, and only if they are married and have relatively
grown-up children:
Women reach a high professional level by the age of 30 or 40; children
who attend school are not ill that often.96
Also:
Normally, a woman of this age [35 years] already has children, and these
children are not infants and do not fall ill too often. In other words, the
woman does not have to stay home with them on sick leave. She is more
energetic and more able to do the work.97
Many women clearly perceive denial of a job as an act of discrimination:
When a friend of mine was negotiating a good and very promising job,
she was asked to stay single for another three years or at least rule out
pregnancy. The alternative, if she planned to have a baby, was to reject
this position. I think this is discrimination. Sure it is.98
Also:
This is a violation of rights. It is almost impossible for a pregnant
woman to find a job. I can give you lots of examples. A woman with a
little kid cannot find a job either. No-one wants a worker like this, your
kid is sick — no-one wants you.99
Interestingly, focus groups revealed that the same set of prejudices about
the social role of women, specifically, that they are more responsible for
family life than their careers, was generally held by women as much as by
men. Some of the female participants of focus groups were convinced that
it did not make sense to fight for equal employment rights.
If you look into it, there can be no equality, because of the conditions of
being a woman: women must have kids, they must devote a lot of time to
93
94
95
96
97
98
99
Regional Report “Discrimination against Women in the Karelia Republic—2002.”
Regional Report “Discrimination against Women in Moscow—2002.”
Regional Report “Discrimination against Women in the Irkutsk Region—2002.”
Interview with an employer, Altai territory.
Interview with an employer, Murmansk region.
Focus group, Rostov region
177
their kids’ up-bringing. As a result, they can devote less time to work if
they cannot afford a baby-sitter. All in all, what a woman is all about is
having babies and raising them, and there is no way around this. So,
employers prefer to hire men, and it is clear why: a man hardly ever
goes on sick leave, he does not have to stay at home with the kids; these
are women’s duties. Woman has been put in a very difficult position by
Nature herself.100
Also:
I think that when women really want to achieve something, there occurs
natural selection. Those who are capable do get what they want, and
there is no infringement on women’s rights.101
But the opposite opinion, that the denial of jobs in traditionally male fields
to women is discrimination, was also evident in interviews and focus
groups:
In traditionally male fields, women are discriminated against. For instance, how many female generals or colonels do you know?102
The low level of legal awareness among women often means that they sacrifice package of social benefits granted to them by law in order to improve their competitiveness on the labor market:
Frankly, I have no right to be sick, and it would be a problem to go on sick
leave to take care of my kid. I also had to cut short my maternity leave. I
only spent a year at home with my baby. I am lucky I have a friend at
work. She called me and said that I had to come to work or I was going to
lose my position, that they could not afford to keep empty desks in the office. So, I had to find a nurse and return to work, since everybody in my
family works and no one is available to look after my child.103
Also:
Woman is now in a situation that she will work whether her kid is sick or
not. She will take care of the child illness issue herself, without getting her
employer involved, provided, of course, that we are talking about a good
and well-paid position.104
Notably, a woman who puts her work first is seen in a negative light by
her peers:
We have spent 75 years fighting for emancipation, for equal rights with
men. So, we have gradually raised ourselves to the level of I do not know
what… A working animal.105
Also:
I have a friend, she has a high salary but no family, she has given herself entirely to her career.106
100
102
103
104
Interview with the Chairperson of the Regional Labor and Employment Committee of the
Legislative Assembly. Rostov region, 2002.
105
106
101
178
Also:
As a rule, women who are preoccupied with their career have family problems or no families at all, or they are “iron ladies,” but they are not many.107
Faced with multiple difficulties, some women look for jobs that pay under
the counter or become housewives.
I was rejected twice. They would not accept me because I had three children, one of whom was still in nursery school. Even friends denied me
jobs as assistants in their shops. But I have no hard feelings about it because I put my family first, and it would have been difficult for me to
switch my attention to work and take less care of my family. This is
simply not my thing, as they say. What I am doing now is handicraft at
home, there is some demand, and I’ve got customers.108
Virtually all interviewees pointed out that it would be impossible to prove
a violation of labor laws, as employers almost never specify the reasons
behind employment denials:
A friend of mine, a medical doctor, was denied a job because she had a
little kid, but they told her they hired someone with better qualifications,
while actually they had given the job to a young man who had just
graduated from college.109
Also:
Employers provide no grounds when they reject women. They simply say
they are not interested.110
Also:
As a rule, there will be veiled violations. In other words, no one would
tell a woman that the reason why she is rejected is her recent marriage
or the likelihood of her taking leave to look after her child.111
At present, there is no record of women filing suits against employers for
discrimination in the hiring process. Though there are legal opportunities
to raise such complaints, they are largely inaccessible. For example, Article
64 of the RF Labor Code expressly prohibits denying jobs to women in because of pregnancy or children. In addition, the law requires that, upon
request of the job applicant, the employer must state the grounds for denial in writing; and such denial can be contested in court. However, Article
64 says nothing about the procedure that the job seeker should follow to
obtain such a written denial. According to women’s rights activists from
the Kaliningrad region, employers often deny ever having met applicants
that demand written denials, and it is very difficult to prove otherwise.
The regional lawmakers that we interviewed were divided on this issue.
Some denied the existence of such discrimination, saying “if a woman has
the requisite professional skills, there are no obstacles to her getting a job
and a respectable salary.”112 Others disagreed, pointing out that despite the
107
108
109
110
111
112
Interview, Novosibirsk region.
Focus group, Altai territory.
Interview with an expert, Kurgan region.
Interview with a female deputy, Smolensk region.
179
high quality of education available to women, “at present, if a woman loses
a job, she would have a hard time finding another. Only friends can help.
She would have to accept a low-qualification, low-paying job.”113
The monitoring effort revealed that two regions of the Russian Federation
had made attempts to reverse the situation by adopting regional legislation
aimed at reducing the number of violations of women’s labor rights.
Namely, we can refer to the resolution “On Establishment of Rates of Employment for Persons Requiring Particular Social Support” by the Governor of the Tula region and the resolution “On Establishment of Rates of
Employment and Granting Tax Exemptions to Organizations Employing
Persons Requiring Particular Social Support” by the Government of the
Udmurt Republic.
Both documents list the most vulnerable groups of women (in particular,
single mothers and mothers with three or more children) among persons
requiring ‘particular social support.” Women rights activists from Udmurtia report that the relevant resolution has had a significant effect on the
situation in the Republic. According to women’s rights activists from the
Tula region, however, “it takes a lot of insistence to get a job based on this
resolution, since employers would use any pretext to reject you.”114
THE RIGHT TO EQUAL OPPORTUNITY TO PROMOTION
The situation in the sphere of public service,115 where women, despite constituting the majority of public servants, hold only a small share of highlevel positions, speaks for itself, not only concerning the right to participate
in governance (Article 7.b of CEDAW), but also concerning the right to
promotion (Article 11.c of CEDAW).
There are no detailed statistics or in-depth research about the number of
women in managerial positions. The given monitoring effort could not and
should not try to fill this gap because it had different goals and objectives.
Nevertheless, the information collected by the regional monitors leads us to
conclude that women’s prospects for career development in the private
sector does not differ qualitatively their dismal prospects for promotion in
public service.
For example, in the Altai territory, of fifty factory and plant general managers two are women; in banking institutions, of top managers, only one is
a female; in the eleven major private companies, all general managers are
men; and in the fields of architecture, road construction, agriculture, communications and transport, all leaders are men. According to the Trade and
Industry Chamber of the Penza region, there are no women among major
companies’ top managers. And according to the information provided by
the State Statistics Committee of the Rostov region, there are no women
executives in any major enterprise or organization (those employing more
than 4 000 people).
113
Interview with a male deputy, Rostov region.
Regional Report “Discrimination against Women in the Udmurt Republic—2002” and Regional Report “Discrimination against Women in the Tula Region,” 2002.
115
See the section “Right to Participate in Government and Public Service.”
114
180
The opportunities for women in the media industry are significantly better.
In the Altai territory, of eight newspaper editors-in-chief, four are women;
in the Smolensk region — seven out of fifteen. In the Rostov region,
women are in charge of half of 50 regional and municipal periodicals, as
well as 14 out of 42 TV and radio companies.
On the whole, though, focus groups and interviews confirm that women do
not enjoy the same career development opportunities as do men.
One of the interviewed female legislators clearly pointed out that limited
opportunities for female promotion are the main reason why there are no
women in significant posts:
Women occupy secondary, insignificant positions because they are not
promoted, they are given no way upwards.116
This sentiment was echoed in other responses, too:
That is the situation. All the work is done by women, but everywhere
bosses and directors are men. And not because they are more intelligent
than women, but because they are men.117
Also:
Top managers are normally men, women can hardly make their way up.118
Also:
Women work, men supervise.119
Also:
It is more difficult for a woman to enjoy her rights if she wants to become a top manager of a state-owned enterprise or a private business.120
Gender stereotypes seem to be the primary cause of discrimination:
An opinion has developed in this State that men are the ones who are
entitled to leading positions.121
From the interviews conduced with male legislators, we get a rough impression of men’s discriminatory attitudes towards women seeking promotion:
The situation with female career advancement is more complicated,
women are more emotional, vindictive, stubborn. Not all men agree to
have a female as their second-in-command.122
Also:
Women are assistants.123
116
117
118
119
120
121
122
123
Interview with a female deputy, Krasnodar territory.
Interview, Altai territory.
Ibid.
Ibid.
Interview, Penza region.
Interview, Kaliningrad region.
Interview with a male deputy, Republic of Karelia.
Interview with a male deputy, Kaliningrad region.
181
Still another interview attests to the centrality of discrimination in management to the lack of promotion opportunities for women:
Three people were hired at the same time and one of them was a girl.
This poor creature… was struggling against all that for a year… because
the two young guys hired together with her… would go abroad, close
contracts, enjoy interesting work, but she was confined to her desk handling papers. And no matter how many times she tried to prove to and
convince [her superiors] that she was worth something, she never could.
She left the office, saying that she was tired of all that.124
Of course, there are often other circumstances that motivate discrimination
against women in career advancement:
I was about to be promoted but when it became clear that I was in my
fourth month of pregnancy, the promotion was immediately called off.125
Inequality in promotion also manifests itself in other forms:
It happened at a legal consultancy firm. Two young men and a girl were
hired to work there. And the girl… was made to play an “errand-boy”
despite the fact that officially she was a legal consultant. When pay-day
came, it so happened that she was paid less [than the men]… She was
really enraged.126
Many women interviewed within the given monitoring effort to a certain
extent regard lack of equal access to promotion as a cause behind unequal
pay:
In terms of the wage/position relationship, men and women are paid the
same, but it is men who monopolize managerial position. Women are
never offered such positions.127
Also, it should be noted that women are held back by promotion not only
by prejudiced men, but by prejudiced women as well:
The reverse trend that we face today is that a woman should be neither a
mother nor a wife… Indeed a wife is a woman in the house who takes
care of a home… But our education emphasizes career… I have lots of
young friends who see nothing but work, their kids stay with babysitters, everything is OK with them. They enjoy nice jobs, but their families break into pieces.128
Also:
I believe that women must not strive to win positions normally occupied
by men unless they are driven by income motives.129
124
125
126
127
128
129
Interview,
Interview,
Interview,
Interview,
Interview,
Interview,
182
Moscow.
Kaliningrad region.
Moscow.
Republic of Karelia.
Moscow.
Rostov region.
THE RIGHT TO EQUAL PAY
According to the Moscow Center for Gender Studies, “those groups and
categories of households that have been singled out as running the greatest
risk of falling into poverty suggest that, in light of today’s economic situation in Russia, we can speak about a feminization of poverty.”130
According to the Sector of Personal Incomes of the Department of Personal Incomes and Standards of Living of the RF Ministry of Labor, “the
greatest poverty rates (as percent of the total number of persons in the
respective gender/age group) have been recorded among children aged
seven to 15 years (41.9%), and women aged 31 to 54 years (36.4%).”131
Unequal remuneration is one of the key engines driving the feminization of
poverty. In 1998, the average monthly salary for women was below 70% of
that for men.132
This is confirmed by statistical data gathered within the given monitoring
effort by women’s organizations throughout Russia. The figures below are
cited from their regional reports.
In the Irkutsk region, women earn 39% less than men on the whole in organizations involved in general commerce in the region, men’s salaries are
2.5 times as large as women’s.
In spite of the fact that in the Karelia Republic women account for more
than a half of all employees, their proportion among those persons who
have super-incomes, or incomes that are two—three times the average income, is extremely small.
In the Novosibirsk region, men’s average monthly pay exceeds women’s by
41.5%; in the Stavropol region, by 45%. In 2001, the average monthly salary
of women employed by large and medium-sized companies of the Udmurtia Republic was 2 067.6 rubles, while men received 3 375.90 rubles. In
other words, men’s salaries are on average 1.6 times greater than women’s
in the region’s large and medium-sized companies.
According to responses provided by women working for municipal authorities in the Rostov region, 52.63% of women had encountered a moment
where a difference between men’s and women’s salaries was clear in their
in their respective towns and districts.
Legislators and members of relevant legislative committees, while admitting that there exist violations of women’s right to equal pay, attribute
those violations to different public expectations of men and women:
Such a situation [in which salaries of men are higher than those of
women] is attributed by T. Portnova, Deputy of the Moscow City Duma,
to our society’s mentality and culture, in which men are measured with a
different yardstick than are women. She calls it ‘patriarchal culture.’
“Women face difficulties in getting jobs, getting paid, getting promoted.
130
Economy and Social Policy: Gender Dimension. (Moscow: Academia, 2002).
M. Bayghereyev, Chief of the Personal Income Section of the Personal Income and Standard of Living Department of the Ministry of Labor of the Russian Federation, “A Review of
Russian Poverty: Causes, Features, Measuring Methodology,” Man and Labor (#8, 2001).
132
Russian State Statistics Committee.
131
183
Basically, women are looked at as less promising workers than men, less
promising politicians, worse managers than men.”133
Some said that in actuality there is little to no discrimination, and if there
are some individual cases, they only occur in the private sector.
I haven’t heard anything about discrimination on the labor market. If a
woman has the relevant professional skills, there are no obstacles to her
employment and respective compensation.134
Also:
If you ask me if there is discrimination in terms of compensation, my
answer will be no.135
Also:
If I were a manager, why would I pay a woman more? In governmentowned companies, men and woman in equal positions are compensated
equally.136
One reason why women are often paid less than men is the intensive process of salary differentiation in the post-reform period driven over the past
ten years by rapid growth of salaries in sectors with high export potential
(in particular, the fuel and energy sectors) and in the financial/credit sector. Salaries in social sectors (health care, education, culture) and in agriculture remained at lower levels.
Women’s regional groups confirm this finding:
In terms of personal incomes, women are far below men. Typically,
women are employed in the lowest-income sectors of the economy (education, health care, social sphere), in low-income businesses (shuttle traders, vendors in open-air markets), or domestic work.
For instance, 23 000 social workers are employed in the Rostov region,
and 85% of them are women.137
Also:
Salaries exceed the average wage in sectors that are seen as traditionally
men’s sectors, such as industry, telecommunications, construction, transportation. Women’s sectors, such as culture, health care, education, retail
trade, and catering, pay salaries that are lower than the territory’s average salary.138
Also:
In 2001, monthly salaries paid by large and medium-size companies were
2 067.60 rubles for women and 3 375.90 rubles for men. In other words,
men were paid 1.6 times more than women per month. The range of
salaries in the same year in “women’s sectors” was from 1 378.90 rubles
in primary and high education to 2 932.00 in telecommunications. The
133
134
135
136
137
138
Regional Report “Discrimination against Women in Moscow—2002.”
Interview with a member of a relevant legislative committee, Rostov region.
Regional Report “Discrimination against Women in the Rostov Region—2002.”
Regional Report “Discrimination against Women in the Stavropol Territory—2002.”
184
women’s salary as a proportion of men’s salary ranged from 60.6% in
transportation to 81.3% in culture. Only in agriculture and in forestry
this proportion stood at 100.3% and 103.8%, respectively. Thus, sectors
dominated by women employees turned out to be the lowest-paid sectors.
Men’s jobs, especially in the mining industries, are not only paid better,
but they are also qualitatively different. They provide the worker and its
dependents with a living wage, while this is not the case in women’s jobs.
For instance, in 2001 in our Republic [Udmurtia] men employed in geology and exploration were paid 8 170 rubles, or the equivalent of 6 living
wages per month, while women in education received an average of
1 378.90 rubles per month, roughly equivalent to one living wage. The
situation is very similar in health care and culture. As regards agriculture, wages there do not even constitute a living wage.139
The authors of the Macroeconomic Review of Feminization of Poverty in
Russia note that professions that employ women are often related to domestic responsibilities (raising children, caring for the sick, etc.), are less
prestigious and offer lower salaries.”140
In the opinion of female participants of the focus groups conducted within
the given monitoring effort, women’s salaries are normally significantly
lower than their husbands’ salaries. Below is a typical comment:
A job in a library is also not taken seriously by men. But personally I am
conscious of the fact that if I had to live alone I would not be able to
survive on my salary.141
We must emphasize again the enormous effect of popular, patriarchal
stereotypes. Many female participants in the focus groups agreed that a
man must be paid more because he has the responsibility of providing for
his family. They also believed that for a woman a job is merely an opportunity “to get out of the house” or make a small contribution to the family’s budget.
Many women have to work, and what you get as a result is a poorlylooked-after home. And the kids get too little attention. Sure, women
work for money, for the sake of an extra penny in the family’s budget,
because you cannot live on a single salary. If we were better off, then
surely I’d focus on our home and kids.142
Also:
Woman doesn’t work just to earn a salary. She needs to work in order to
get out of her family, because when woman stays at home surrounded by
her children, she has only a broom, a duster, and dirty dishes. A human
being grows dumb in such an environment. A Woman should have a job,
even if she has plenty of money. She should work a little, just a little,
for herself, for her own sake. To develop as a person, to avoid growing
dumb.143
139
Regional Report “Discrimination against Women in the Udmurt Republic—2002.”
“Feminization of Poverty in Russia,” Macroeconomic Review of Feminization of Poverty in
Russia (in the Collection of Reports for the World Bank).
141
142
143
Focus group, Novosibirsk region
140
185
At the same time, some female participants of the focus group recognized
the problem of unequal opportunities for women in the workplace:
In this case she [woman] cannot hope for promotions or a decent salary.
Working like this means she has a low-salaried and, as it were, “lowgrade” job that does not enjoy a lot of popularity.144
In many cases, a situation arises in which the employers sets a woman’s
salary at a lower level than a man’s for similar positions only because they
are following a deeply-rooted tradition:
Our director saw it as perfectly normal for a man’s salary to be higher,
because a man is a man, he has to support his family. And the possibility that a woman may live alone, may support her kids, her husband,
well, none of these are given consideration.145
Also:
Most employers when they pay men more than they pay women justify
it by saying that a man is a provider for his family, so he must get more
than a woman, and the financial or marital situation of women are
given no consideration. She could well be the only provider in her family
and raise her kids alone, with no support from their father.146
Also:
Ms. N. got a job as head of marketing in a private business. Her monthly
salary was 8 000 rubles. Three months later, she learned that the salary
of the head of economics was 13 000 rubles. Apart from this, bonuses
paid to Ms. N. and her male colleague were also unequal. Ms. N gets 40%
of her salary as a bonus; the head of economics gets 100%. Ms. N asked
the management to explain the reasons for such unequal payments. What
she got in reply was, “The head of economics is a man! And although
your performance is in no way inferior, there is no way that your compensations can be leveled out.”147
Also:
I ran across this when I worked as a cook in the meat kitchen at the Don
Institute of Agriculture. Working next to me was a male cook. He would
work for a few hours and leave. I had to work from six in the morning
till eight in the evening, and I received a lesser salary than he did. I
raised this issue, and was told in reply, “He is after all a man, and you
are only a young girl.”148
Very interesting in this respect is the opinion of the CEO of a business
company in Saratov:
There is discrimination even in terms of remuneration. I employ two
managers, a man and a woman. I set a salary of $150 for the man, and
$100 for the woman. It was only later that I sat down and thought that
something must be wrong about it. I tried to discuss this with my chief
accountant, to the effect that we must have made a mistake, but my
144
145
146
147
148
Ibid.
Regional Report “Discrimination against Women in the Novosibirsk Region—2002.”
Regional Report “Discrimination against Women in the Saratov Region—2002.”
Focus group, Rostov region. 2002.
186
chief accountant said, why, he’s got a family to feed! I say, their responsibilities are the same, why should we pay the woman less? So I gathered
my courage and leveled their salaries, and now I see that the woman
adds more to my business.149
Some employers set lower salaries for women openly stating that a woman
devotes more of her energy to her family and children and thus gives less
of her time to work as compared to a man:
Discrimination does exist, especially against women who have infants. In
some cases, men are paid significantly more than women who do the
same job.150
Also:
It was seen as perfectly normal that a woman has no rights at work. She
is often demoted to low-level positions with low salaries, because people
in these positions cannot take leave to care for their sick children.151
Also:
The way [lower pay] is explained is that a woman does not perform as
well because she keeps thinking about her kids and her family, and she
refuses to travel work overtime, or show up for work at weekends.152
In some cases, people view employing women as a cost-saving opportunity.
Over the course of the monitoring effort, several employers from Irkutsk
admitted, that “the primary reason to employ women is the opportunity to
pay them less.” This was reaffirmed by over a half of all employers interviewed in Irkutsk.153
In Moscow, a similar trend has been observed:
Anton, the CEO of a small business engaged in furniture manufacture,
says:
Why pay women more if I can pay them less. Everybody does this.154
In organizations that do not give equal compensation, the practice is seen
as perfectly normal:
My husband and a female employee have equal positions, but he is very unhappy when she gets paid the same amount, which occurs very seldom.155
Many female participants in focus groups noted that, since men are seen as
better workers, men are increasingly being hired to fill high-salaried positions. Women’s organizations from the Karelia Republic and the Irkutsk
region spoke about deliberate displacement of women from highly-paid
positions:
149
In the Interest of All Russia. Materials of the workshop “Interaction between Authorities
and Nongovernmental Organizations in the Saratov region. Acting Together: Cooperation in
Conceptual Development of a Law on Equal Rights and Opportunities of Men and Women”
(Saratov: 2001, pp. 220—224).
150
Interview with a member of a relevant legislative committee, Kurgan region
151
152
Regional Report “Discrimination against Women in the Stavropol Territory—2002.”
153
154
Regional Report “Discrimination against Women in the Moscow—2002.”
155
187
Even in such sectors of the economy as health care and social security,
where men account for only 13% of the total employees, women’s salaries
stand at 92% of what men get. These figures show which positions are
held by women and which by men. Normally, the position of Head Surgeon at a hospital is held by a man. Lower down the ladder in terms of
the status and the salary, most employees are women. Men are doctors
and junior medical staff — it is almost impossible to imagine men filling
positions like cleaners or kitchen workers. The situation in the other sectors is very much the same. The more money in a sector, the fewer
women are in managerial positions there. These facts paint a picture of
what we can call “lawful” discrimination.156
Also:
Salary differences between similar positions in different sectors of the
economy have always existed, and they are based on labor consumption
standards embedded in calculations of tariff rates and salaries. However,
if the economic situation changes in a way that salaries in a sector grow
considerably, there occurs gradual displacement of women by men in
such a sector. Men, as preferred workers, are employed in sectors that
have greater growth prospects and higher technological levels.157
In addition, as noted by women’s rights activists from Irkutsk:
Women prefer to work for government-operated entities, where there are
paid sick leaves, child support payments, paid annual leaves, guaranteed
job security for three years after giving birth, and set working hours .
Wishing to stay socially protected, women have to put up with low salaries.158
Women’s rights activists from Smolensk identify low-salary job opportunities for women as the only warranted way to receive privileges and social
guarantees:
In the city of Smolensk, a woman can expect to find a low-salaried job
at the city administration, where she will be able to formally get a maternity leave in accordance with government regulations. Non-prestigious
and low-paid positions (nurses at kindergartens, high school teachers,
medical staff at government-operated clinics and hospitals, municipal
bus drivers and fare collectors, etc.) are normally retained by women after they go on maternity leave.159
However, female participants in focus groups insist that in this regard a
woman simply has no choice in most cases. It is common knowledge that
women stay unemployed for longer periods of time than men, and women
tend to be more willing to accept jobs for which they are overqualified:
I am sure that women have to accept low-paid jobs that men are simply
not interested in. To give you a specific example, there are street car
drivers. I know that men and women are paid the same for any given
156
157
158
159
Regional Report “Discrimination against Women in the Karelia Republic—2002.”
Ibid.
Regional Report “Discrimination against Women in the Smolensk Region—2002.”
188
distance. But in kindergartens, only women work for a salary of a nurse
or a teacher, which is 400—600 rubles.160
Also:
In terms of remuneration, there also are latent violations of women’s
rights. You know yourself that women occupy such jobs where salaries
are clearly out of line with what men come to expect.161
During the monitoring effort, it was quite frequently noted by respondents
that women have to accept low-paid jobs for which men will not compete.
On the other hand, in most cases, the positions in question are manual labor positions (often demanding unskilled labor). The problem here is that
those positions that women can and do occupy are low-paid, while “men’s”
hard labor positions are better paid and off limits to women.162
In some regions, attempts to change the situation are made only in the
fields of medicine and education. However, these are only half-hearted
measures that can in no way change the big picture:
Our regional authorities are making hardly any decisions that will affect
change. They are restating situation, while in other regions education and
health care workers have gotten raises. At a meeting with heads of educational institutions in late August 2002, the Novocherkassk Mayor
merely promised to consider the possibility of a raise for young specialists.163 The raise would be roughly 500 rubles for teachers in their first
three years.164
Also:
Take salaries, for instance. I think that in those fields where most workers are women, salaries are low. Unfortunately, nobody does anything
about it. The governor made a populist move last year before the elections, increasing salaries for medical workers by 100 rubles for a certain
period (four or five months). But this is not a solution. I believe nothing
is really done in this area.165
Also:
In the Rostov region, education employs 45 000 people, of which only
7 000 are men. In spite of the salary raise on December 1, 2001, salaries
are disastrously insufficient considering the actual cost of living in the
region.166
At government-operated facilities, discrimination against women in terms
of pay should in effect be impossible, as salaries are accrued to both men
and women in accordance with a set pay scale. Interviewed lawmakers insisted repeatedly on the importance of this system. However, in the view
160
162
Resolution #162 of the RF Government “On Approval of the List of Hard Jobs and Jobs
Involving Harmful or Hazardous Conditions of Work for Which the Employment of Women Is
Prohibited,” dated February 25, 2000.
163
M. Martynov, “A Constructive Dialogue before the Start of the Academic Year,” Novocherkasskiye Vedomosti (#35, September 4, 2002).
164
165
Interview with a male deputy, Rostov region
166
161
189
of women, even here men get more, as managers find ways to pay them
something extra on top of their salaries:
If it is a regular government-owned entity, salaries are equal, but in the envelopes people get individual bonuses… possibly for services of some type.167
Also:
For instance, female engineers in design companies have always got less
then men, for whom the management has always been able to find a possibility to throw in some extras or incentives… I believe that women get
less for the same job than men.168
Also:
I learned from a female acquaintance that she, a mason who was working hard at a construction site, was paid less than a male mason even
though she did the same amount of work.169
Also:
At one of these teenage clubs, to keep a man from leaving, the management allowed him to fill three positions simultaneously.170
The way in which discrimination manifests itself in compensation is closely
related to other manifestations of discrimination against women. One of the
most important factors holding back women’s salary growth is the near universal gender discrimination in promotions and in employment. This is confirmed by both the interviewed experts and participants in focus groups:
There is [discrimination] in salary levels, too. Men are normally moved
up the ladder far more easily. Women have chances of promotion all
right, but men have clear priority.171
Also:
In our business, female electricians in the fifth category do about the
same as men. However, women are paid less, and they cannot advance
past grade five. It is just not done at our plant.172
Also:
In the army, men have higher ranks, so they have better salaries.173
Also:
At the agency where I work, employers often specify in their orders that
it is men that are required for well-paid jobs.174
Also:
For the same job, no, I haven’t seen any [discrimination in payment], but
men are offered better-paid jobs than women, yes.175
167
168
169
170
171
172
173
174
Ibid.
Interview with a member of a relevant legislative committee, Karelia Republic.
190
In addition, some interviewees told of cases in which employers extend
privileges to men (there even were a few cases when, in the opinion of female participants in focus groups, male workers had been provided better
conditions by male bosses simply because of male solidarity):
When I was a legislator, my labor rights were undoubtedly violated: I
was the only female deputy and I was paid the smallest salary.176
Also:
I do not agree here, even if the base salaries are equal, a male boss can
always find a way to mark out a woman subordinate among men. There
are lots of ways, like vacations, benefits, interesting travels, educational
opportunities, all those saunas, fishing events, hunting outings, paint-ball
parties. We have heard enough of those. This is where men’s solidarity
shows itself.177
THE RIGHT TO SOCIAL SECURITY
According to Russian legislation, women enjoy the same rights to social
security as do men. In addition, they are afforded a number of additional
benefits, some of them related to birth and raising children.
That said, the right to social security has been systematically violated on a
large scale in the Russian Federation over the past ten years. It nearly goes
without saying that for a variety of reasons, including the discrimination
they face in the labor market and their responsibilities as mothers, women
constitute one of the most vulnerable subgroups of Russia’s population.
Though the last few years have seen small improvements, women’s overall
situation with respect to social benefits remains unacceptable. Today, Russian women rank the state’s delivery of social services and benefits as their
most pressing issue.178
Violation of the Right to Pension Benefits
On the whole, according to women participants of focus groups conducted
within the project, the validation of one’s retirement is an exhausting procedure associated with a variety of bureaucratic barriers. In addition, according to women’s organizations in the Irkutsk region, the size of retirement benefits provided to women are on average 30—40% smaller than
those provided to men, a consequence of lesser wages and shorter employment records (which often relate to gaps in employment record caused
by giving birth to and raising children). Also, incorrect registration of one’s
years of employment can often makes the difference between benefits and
no benefits:
At our plant, where the manufacturing process is detrimental to health,
women retire at the age of 45. But when I retired I discovered that one
year of my tenure in harmful working conditions (during 1992—1997)
had disappeared. The plant back then was considered non-functioning…
175
176
177
178
Ibid.
Survey of women participants in focus groups.
191
I tried to prove to the local pension board that in reality I had been
working at the plant during all that time and that I hadn’t had a single
day of leave without pay. I couldn’t prove anything to anyone.179
Practically all women surveyed in the course of the monitoring effort believe that retirement benefits are insufficient. The majority of women view
the situation with pessimism:
I am also concerned about the small size of retirement benefits that is
only sufficient to pay for housing services.
It is telling that many women
rity” is deliberately designed
consequently, for arbitrarily
about pension officers are thus
think that Federal Law “On Pension Secuto allow for different interpretations and,
determined pension amounts. Complaints
frequent:
I am concerned about the ambiguity of the pension law that is interpreted in any way one [any given official] wants when one is determining pension amounts.180
Also:
My father applied for his pension. He was told the amount of his pension.
He bought a bottle of liqueur and took it to the pension fund. His pension
was raised. The person who calculates the pension amount can use some
article. Or she could ignore it. This will impact the pension size.181
As reported by a women’s organization in the Stavropol territory, women
most frequently complain about small pensions and high utility fees. In order to sustain themselves, many women continue to work for quite a long
time after their retirement.
Violation of Rights to Child Benefits
Today a large number of women in Russia work either without labor
agreements or with labor agreements that provide for a merely nominal
wage (frequently minimum wage), which is significantly smaller than the
agreed-upon wage. In the first case, women are not allowed any sick leave,
maternity leave, or childcare benefits; in the second case, they receive social benefits, but the specific amounts of aid and degree of benefits are
calculated on the basis of the nominal wage, and are thus minuscule. For
more details, see sections “The Right to Equal Pay” and “The Right to
Equal Opportunity in Access to Employment” in this report.
The current Labor Code provides for a significant number of benefits related aimed at strengthening not only the mother’s but also the father’s social role in the raising of children, which facilitates the promotion of gender
equality. Thus, Article 256 of the Labor Code provides that “childcare leaves
can be used entirely or partially also by the child’s father, grandmother, or
other relative or guardian who in fact takes care of the child.”
However, the share of fathers who exercise these rights has so far been
insignificant. In the Irkutsk region, for example, they constitute only 1% of
employees taking leave to care for children.
179
180
181
Ibid.
192
In spite of the fact that all social benefits are guaranteed by the legislation,
it is nonetheless incapable of helping recipients to maintain a reasonable
standard of living. Individuals who find themselves in difficult situations
without means to sustain themselves encounter problems when applying
for social benefits more often then others. The most frequent victims are
single mothers:
And I agree that the state infringes upon the rights of women. First of
all, the amount of child benefit when there is a single mother… is 200
rubles. Well, this is ridiculous. Is it possible to raise a child on 200 rubles? It is good when there is, when there is an additional income or
when parents help.182
Also:
A single mother is simply unable to raise a child independently.183
Also:
I am raising my daughter alone. A single mother is viewed as an inferior
being, every day she has to fight for her place under the sun, obtain piles
of documents to have her application for benefits processed, to have her
social status linked to her place of residence. Unemployment benefits are
meager and I have an ill mother for whom I have to buy medication. It is
good that she regularly receives her pension on which we actually live.184
Also:
A monthly benefit in the amount of 70 rubles is paid for each child.
What can one buy on that? I have two children; I am paid 140 rubles per
month for them. I have no parents; I was raised in an orphanage. I work
in domestic services. Everybody knows that it doesn’t pay. So, I have to
work at two jobs all the time.185
Some people surveyed noted that, to add insult to injury, sometimes not
even the small child subsidies promised are paid in full:
Speaker A: It is understandable that an engineer with higher education
is a poorly-paid specialist. But law is law and you can’t oppose it. And
then again the monthly benefit for a child under the age of one and a
half is the same for everyone — 550 rubles.
Speaker B: At our plant it is 200 rubles.
Speaker A: Why 200 rubles?
Speaker B: Because 550 rubles are paid from the federal budget, and the
plant pays 200 rubles. I know that because daughter of one of our colleagues had a child and we had a conversation like that.
Speaker A: So, who is violating the federal law then?
Speaker B: The plant administration.186
182
183
184
185
186
Ibid.
Focus group, Barnaul.
Ibid.
193
Violation of the Right to Social Security Benefits
(payments and arrears)
Many women from among the focus groups participants complain about
the fact that social security benefits to which they are entitled are delayed
or not paid at all:
I don’t know of any such people, even those social subsidies that are
called child benefits are not paid on time.187
Also:
I think I read something somewhere but I have never encountered that in
my life. I know that even child benefits are not paid.188
Also:
There are child benefits but first, they are not paid, and second, those
amounts are so minuscule one cannot buy anything on them.189
Also:
My son was born in 1996 but since 1997 I haven’t seen anything remotely
resembling child benefits. My baby says, “Mommy, when we have collected all the child benefit money we will buy a big color TV.” I nod, like,
“Of course, baby, we’ll buy it.” But I think to myself, “what TV set are
we talking about?” I wish we had enough money to sustain ourselves.190
Women’s organizations from the Penza region report that arrears on child
benefits were paid out in 2001—2002. However, frequently barter arrangements would be made instead: recipients would be given stationery,
footwear, foodstuffs, furniture, etc. instead of their cash benefits.
In some cases, women did manage to receive the benefits in court:
I pressed charges and made them pay.191
However, this is generally the exception to the rule. In the overwhelming
majority of cases, the woman who does not receive her benefits does not
even try to stand up for her rights:
And if you don’t receive your money this money is transferred somewhere anyway, I think, because every child is listed. I hadn’t received
anything in two years, but then I came to talk to the officials. I know
that the money sits there in a deposit for some time if you don’t receive
it. I requested that my benefits for the last three months be paid out to
me. It was a difficult situation. And they said, “Everything has been already received on your behalf.” Even these kinds of things happen.
Many have given up.192
Some of the focus group participants noted that the situation with payment of benefits had improved. And although the amount of payments, as
187
188
189
190
191
192
Ibid.
Regional Report “Discrimination against Women in the Saratov Region—2002..”
194
a rule, does not satisfy anyone, the very fact that they are paid at all is
viewed in a positive light:
In terms of rights that are observed in one way or another, we can talk
about child benefits, the payment of which has begun. The benefits are
very small but still they are paid out.193
However, those women who were receiving benefits, or at least were entitled to them at the time of the monitoring effort, were less optimistic:
Yes, I do receive a child subsidy, but it is nothing, 70 rubles from the
federal budget. Yes, it is ridiculous. What kind of governmental support
are you talking about, what can one buy on 70 rubles?194
Complex Procedure of Redemption of Benefits
The majority of the women surveyed were not content with the fact that
social assistance in the country is provided only at the request of the eligible beneficiary. As a result, women who are uninformed about the benefits
and subsidies to which they are entitled and consequently apply late, will
never be able to receive the “missed” payments. In addition, in order to
receive social assistance, candidates must first compile a large number of
documents. Some women perceive the benefit validation procedure as humiliating:
So many formalities one has to go through, so many documents to collect
and submit, so much that you are eligible for assistance. And then they
just send you from one office to another until you give up.195
Also:
We never received child benefits. Why? I can explain: I hate this social
system of ours… I have never been there myself but what I have heard
from other women sounds utterly humiliating to me. I think that if a
woman has had a child she should not be obligated to go through all
those bureaucratic procedures... Here a child is entitled to a benefit. Here
a child is entitled to this amount from this age to that and to that
amount from that age. He goes to school, he is on the list. Children go to
school; it’s as simple as that. I am not talking about kindergartens where
one can go and not go. If a child has begun to go to school his parents
cannot around social security services beating down doors collecting
documents. The child was born; it means that it is there and according to
the law a child benefit must be provided to him, so please pay it. The
very fact of these social benefits, of assistance to people and women in
particular — they are only on paper and when our social security officials appear on television saying that they help us a great deal I just turn
it off. It is money, but there is so much humiliation.196
According to other women who participated in focus groups, due to the
complex benefit redemption process and the small size of the payments,
only those who are really in need bother to apply.
193
194
195
196
Focus
Focus
Focus
Focus
group,
group,
group,
group,
Saratov region.
Smolensk region.
Karelia Republic.
Novosibirsk region.
195
How many young women are there in here who have children? Now,
how many of you receive child benefits? The monthly benefit is 84 rubles. I did get it during the first year. After that I guess only those who
are really in need fight for it.197
Also:
We don’t even go to get them, the majority of us. Therefore, we usually
don’t care about it. Very few of us go for benefits. We don’t have the
time. We work for 12—14 hours on end, for six months in a row without
a single day off.198
Also:
I had my first child back in the Soviet times and everything was paid
out to me. When I had my second child I was working and, naturally
nothing was paid to me. So, I depended entirely on my husband. To this
day, I have not received anything. I was told to collect lots of documents
and many of them from organizations that no longer exist; I would have
to spend so much time in lines that it is simply not worth it. But what
we are eligible to receive is an insignificant amount. Maybe it depends on
where the woman works and how much money she earns, but this is not
really worth fighting for — the 100 rubles in child benefits, what can one
buy on 100 rubles?199
Many women view the lack of support from the state as a planned policy:
The government speaks so much about the demographic problem, but the
size of child benefits, which are not paid anyway, sends the message that
no one in our state needs except their parents.200
Also:
As a young mother, I am concerned most of all about the lack of support
from the state for women on maternity leave. The benefits are simply
ridiculous. Will women have children if the state pays 50 rubles a month
to support them?201
Also:
Mostly people go looking for material support. And it is a meager
amount that they can count on. There is a bill in the State Duma right
now that would regulate the provision of social assistance to women with
multiple children. So, according to this bill, each child is to receive 100
rubles quarterly. A colleague of mine has four children, one of whom is
disabled. She applied to the administration for assistance. I don’t remember how much money exactly she managed to get from them but I
am positive that it was a meager amount.202
Also:
Most of all I am concerned about the status of young families, children.
And what about child benefits? I guess that the government is simply
197
198
199
200
201
202
Focus
Ibid.
Focus
Focus
Focus
Focus
196
group, Novosibirsk region.
group,
group,
group,
group,
Murmansk region.
Stavropol territory.
Penza region.
Kaliningrad region.
ashamed of discussing it. Pensions are talked about a lot, but [not] child
benefits.203
Also:
The only thing that can be changed is the social support system. But in
our country I do not believe [it is possible].204
As a result, women more readily depend on targeted assistance from the
private sector rather than on the state’s guarantees.
For example, respondents from Saratov (all of them are employees of the
municipal social security service) conclude:
If one compares assistance from the state to private donations, the latter
is much more tangible. Private enterprise is not always very rich, but it
does respond and provide as much help as it can afford: sometimes
foodstuffs, produce, and other needed goods. For example, the sewing
factory has supplied several lonely and needy old women with outerwear.
Some deputies of the Saratov Regional Duma also help. They gave us
food boxes for our patrons. If one should compare assistance from the
state and from private donors, the latter is better and more expedient.
The reason apparently is that, as opposed to the state, the donor manages
his funds independently without any coordination with anyone. He independently decides who to help and with what. In addition to enterprises
wealthy people help our patrons as well. For example, one private entrepreneur has opened a free canteen for children from families with low
incomes. We gave him a list of such families and lists of social security
centers in the nearest districts. And children from families with low incomes residing in those districts receive special coupons to eat in this
canteen free of charge.205
THE RIGHTS OF AND SPECIAL BENEFITS
TO PREGNANT WOMEN
The RF Labor Code provides women with rights to certain benefits in connection with childbirth. It also guarantees rights to safe working conditions
for pregnant women and protection of women from dismissal during pregnancy.206 The previous Labor Code, (KZoT) adopted in 1971, also created a
system of special norms guaranteeing special protection of pregnant
women in the workplace. These norms were transferred to the new Labor
Code without significant modifications.
The monitoring findings indicate that the practice of violation of the above
provisions of the labor-related legislation is widespread.
Regional reports by the women’s groups illustrate registered cases of such
violations. For example, the Novosibirsk region notes the case of S. Korkina,
who was dismissed on the basis of her “own request” when the head of the
“Sibvest” company learned about her pregnancy. The director of the “Wall203
205
206
RF Labor Code (adopted on December 30, 2001, #197). Articles 64, 92, 93, 96, 99, 123, 125,
126, 254—256, 258, 259, 261, and 298.
204
197
paper Center” company, I. Sukhova, dismissed the employee Y. Shirshova as
incompetent upon completion of her probation period. The woman was
pregnant when she was dismissed.207 In the Komi Republic, the “Realtor”
company (headed by S. Terentyev) did not pay N. Belykh a child benefit to
which she was entitled having recently given birth. Similarly, the Board of
the “Vorkutaopttorg” company (chaired L. Ischuk) refused to pay a childbirth benefit to its sales assistant A. Ustinova and the ZhFK company (managed by L. Zaitsev) did not pay pregnancy or childbirth benefits to G. Leinveber.208 This is merely a small sample of the many such cases.
Non-observance of the rights of pregnant women was mentioned in the
majority of expert interviews and focus group surveys:
In practice, these rules are seriously violated. This applies to the rights to
vacation and benefits associated with birth and raising of children; this
applies to the schedule, working conditions, and compensation as well.209
Also:
Absolutely no employer needs a pregnant woman in the labor market, so
all rights of the pregnant woman are violated.210
Also:
No employer wants to pay any benefits to a pregnant woman.211
Also:
Do women encounter problems in the workplace when applying for maternity leave? — Yes, very often.212
Respondents especially emphasize that violations occur most often in businesses:
If the job is in the state sector this problem is solved one way or another,
but if the job is in the private sector there is no maternity leave.213
Also:
Business leaders do not observe norms created by labor-related legislation, in particular relating to pregnant women. Public sector employers
have human resource departments, they have trade unions etc., whereas
commercial employers act each in their own way — they have total control of the situation; therefore, a pregnant woman is practically unprotected.214
207
Regional Report “Discrimination against Women in the Novosibirsk Region—2002.”
Regional Report “Discrimination against Women in the Novosibirsk Region—2002;” Regional Report “Discrimination against Women in the Komi Republic—2002.”
209
210
Interview with a psychologist of the Municipal Employment Center, head of the “Job
Hunters’ Club,” Kurgan region.
211
Interview with a leading specialist of the Public Relations Department of the Penza Regional Government, Penza region.
212
213
214
Interview with a psychologist of the municipal employment center, Kurgan region.
208
198
Also:
No employer wants to pay any benefits to a woman. In budget organizations, though, they do pay.215
According to most regional organizations involved in the given program,
the reason why the rights of pregnant women (and rights of working
women in general) are violated is that the extensive system of social rights
created in Soviet times proved to be impractical for the new socioeconomic conditions:
Implementation of the 1971 Labor Code, closely linked to socialist dogma
had the effects of overloading labor legislation with benefits and guarantees provided mostly by the employer and excessively regulating the hiring and dismissal processes. The new Code retains this imbalance and
continues to favor the interests of employee rather than those of employer (such a situation makes all rights difficult to protect, and will result in the violation of even the most basic rights).216
Employers share the opinion that the state unjustly shifts the burden of
implementation of its social obligations upon them.
Our legislation is far from perfect, in particular when it addresses small
businesses. Just like all other commercial enterprises we pay taxes to all
the funds (social insurance, medical insurance, etc.) but neither our employees, nor us have the right to a social insurance fund discount when
we pay for our vacation packages. We are forced to pay maternity leave
and pregnancy benefits from our own pocket. The same applies to sick
leaves. Our state is an employer as well and it neglects salaries for
months on end. Should a small business fail to pay a salary or some
benefit on time, the court’s decision will that you lose everything — you
pay the full price and more. Hence, we use age restrictions in recruitment.217
Employers regard observation of the rights of pregnant women as an unjustified burden. One of the surveyed employers said, “we have to comply
but there have been such cases [of non-payment].”218 The last case is not
accidental since in the present situation the employer prefers to either not
hire women aged 20—30 at all (see section “The Rights to Equal Opportunity in Access to Employment”) or to not execute official labor agreements
by and between them.
An expert argues:
Women who have found employment do not sign any legal documents
for their employers. What happens here is each employer acts as he sees
fit, i. e., the boss in such a situation [when a woman employee is pregnant] simply declares, “Today is your last working day,” and that’s it.219
215
Interview with a leading specialist of the Public Relations Department of the Penza Regional Government, Penza region.
216
T. Maleva, “New Labor Code: Victory or Defeat?” (Moscow Carnegie Center Briefing, 2001.
V. 3, issue 12).
217
Interview with an employer, Murmansk region.
218
Interview with an employer, Altay territory.
219
Interview with a psychologist at the Municipal Employment Center, Kurgan region.
199
Another frequent option for employment is an oral agreement to rule out
pregnancy. Should the woman fail to comply with this informal provision,
she is forced to quit. Our focus group data indicate that women do not
take the risk of ignoring this condition:
I was going to give birth to my second child but yet when I was hired the
company director put forth some conditions: maternity leaves, housing,
kindergartens — none of that would be offered. My contract did not say
anything about it, but I was warned that I was not supposed to get pregnant or else I would have to quit. I had to choose between the job and
having children. I brought a medical statement that said I was not to
travel on business. Fifth month of pregnancy, toxicosis, etc. The boss
said right away that I had known [about the agreement] and that I was
to quit. I handed in the notice [letter of resignation]. I was very upset but
what can you do? I was left without anything, didn’t receive any benefits, neither pre-birth nor maternity, no benefits...220
Also:
I studied to become a cutter and took a maternity leave. And they were
trying to get me to work for another five years [saying], “You should
have warned us that you would take a maternity leave.” The boss was
mad at me, called me names. Claimed I had signed an agreement and
committed myself to several years of work, but we never signed anything! I tried to seek assistance from lawyers, but to no avail. There was
a scandal. Still, I was fired, retrospective to when the pregnancy began.
In addition, they caused a gap in my working record.221
At times, pregnant women encounter threats from employers:
A friend of mine had a problem like that. She worked at a store, had
worked there for two or three months and found out she was pregnant.
She was told that if she didn’t quit of her own accord other grounds
would be found for her dismissal.222
An example of this dismissal process is provided in the regional report
from the Komi Republic. The director of an organization authorized his
chief accountant to take a maternity leave but instead of processing relevant documents and paying benefits he began to issue one official reprimand to her after another and eventually fired her.
A typical case of violation of social guarantees, according to women’s organizations in Tatarstan, is illegal dismissal of pregnant women and women
on maternity leave. Frequently, employers justify the dismissals by change
of business proprietor. Cases in which women whose maternity leave recently ended are requested to “show up at work for one day” in order to
legally legitimize their dismissal are widespread. This happened to Elena
(Naberezhniye Chelny, Tatarstan Republic):
This is the moment when [women] have spent three years [on maternity
leave] and two months before they are to resume their work there begins
the processing of the paperwork necessary to lay them off. That is to say
that the [woman] is laid off on the day when she is to resume her work.
“We have laid you off, we don’t need you, but you will have to show up
220
221
222
Ibid.
200
at work for one day.” So that everything looks legal. So the protection of
motherhood and childhood still remains on paper only.223
In addition, according to regional monitors, employers take advantage of
the fact that the nominal wage oftentimes constitutes but a small portion
of the actual wage, paying women the benefits they are entitled to in connection with their official — nominal — salary, not the substantially larger
actual salary. The size of those benefits turns out to be minuscule.
The following example is provided in the regional report from Novosibirsk.
O. Fyodorova applied for a maternity leave to her employer (V. Petrov), for
whom she had worked for over a year. Then, she found out that the amount
of the benefit to which she was entitled constituted only 20% of her average
monthly wage. Her official monthly wage equaled 450 rubles, and that was
the amount that became the basis for her benefits calculation.
The belief that the woman must ultimately always choose between her
work and her family only contributes to the outlook. Focus group participants frequently affirmed that caring for her family and children must
remain priority for a woman:
We cannot equate [the options of family and career] because of women’s
particular functions: they must have children and they must spend a lot
of time bringing them up. A wife is a woman in the house, the keeper of
the family hearth. Among my younger acquaintances, there are a lot of
those who are all into work, their children with nannies, doing all right,
working all right. There. But God only knows what will happen in their
families.224
Also:
Today, the mother is so overloaded that she has no time to spend with
her child. Women have to be given an opportunity to work a short day or
three days a week so they can spend more time at home.225
On the other hand, the loss of employment and the insignificant amount
or, in some cases, total lack of benefits often determines the family planning policy:
An acquaintance of mine had this problem. She worked at a store and
she worked a seven-day week. Having found out that she was pregnant
they told her, “good bye, we are not obligated to support you. Now you
will go on maternity leave and expect us to provide for you?” She had to
choose — either to have an abortion or quit her job.226
Also:
Many women decide to give up the maternity leave that they are entitled
to, both pre- and post-birth, because of financial considerations.227
Also:
No, it does not depend on the family only, it also depends on the state. If
the state guaranteed me some financial assistance, if my employer
223
224
225
226
227
Regional Report “Discrimination against Women in the Smolensk region—2002.’
201
waited for at least nine months after the birth of my child so that I
could send the child to the nursery, if my job were retained for me, then
I would have children.228
Article 254 of the Labor Code obligates the employer to modify working
conditions of a pregnant woman so as to prevent her “subjection to unfavorable working conditions” but retain her “average wage from the previous position.”
According to the monitoring findings, in reality, if the employer does not
modify working conditions of a pregnant employee, the woman either
agrees to work in the old conditions and on the old schedule or she has to
leave her job. Unwillingness of the employer to comply with this requirement of the labor law also leads to dismissals.
This is confirmed in regional reports. For example, director of the ZIP“Service” restaurant in Krasnodar frequently executed temporary oneyear labor agreements when hiring female employees. Pregnant women
were simply not re-signed.
In the Novosibirsk region the previously mentioned private entrepreneur
S. Petrov refused to meet the request of M. Kostyrycheva, a pregnant
woman who asked that her working schedule be modified. Upon his refusal, the woman agreed to maintain her old schedule.
Sadly, women whose labor rights are violated rarely use the courts to protect themselves. This comment, by a focus group participant in the Tula
region, is typical:
I didn’t petition anywhere, I simply quit when my boss imposed a fine
on me and refused to pay.229
THE RIGHT TO FREE OBSTETRIC CARE
In accordance with the RF Constitution (Article 41), people have the right
to health protection and free medical care. Additionally, Russian law guarantees free obstetric aid:
Every woman is provided with specialized medical care in institutions of
the state and municipal health care system during pregnancy, as well as
during and after child birth, paid for by funds designated for protection
of citizens’ health and by other sources that are not forbidden by the legislation of the Russian Federation.230
Nevertheless, the analysis of information obtained in the course of the
given monitoring effort leads us to conclude that these promises remain
largely unfulfilled.
In the course of the focus groups conducted in the regions, women conveyed an extremely negative opinion of the quality of obstetric care in the
Russian health care institutions:
228
230
Article 23, “Rights of Pregnant Women and Mothers,” Foundations of the Legislation of the
Russian Federation Regulating Protection of Citizens’ Health #5487-1, dated July 22, 1993 (Alterations and Additions: December 24, 1993; March 2, 1998; December 20, 1999; December 2, 2000).
229
202
I happened to give birth on the first day of January and naturally I was
an “unexpected guest [at the medical facility].” Secondly, the girl who had
given birth before me suddenly felt bad and everyone left to check on her.
When I was already in labor they remembered about me and hooked me up
to a drop-bottle, just in case I should feel bad for some reason.231
Also:
I do not have children but my friends keep telling me the horrors about
what is going on in our obstetric wards.232
Also:
I am scared of the thought of my child giving birth. Because when I was
giving birth to my first child I was completely alone on that day. And
when the child was born everyone just left me on that table.233
Also:
I did my best to forget about how I gave birth to my two beloved sons. I
do not want to give birth like that ever again.234
Legislators interviewed in the course of the monitoring effort also give a
negative assessment of the protection to women’s right to free obstetric
care:
Question: How to you estimate the level of medical care: maternity
home, obstetric consulting services?
Answer: Abominable, just like the entire health care system235.
Also:
The level of medical care definitely needs improvement (nothing is free of
charge; one must pay for everything and not every woman can afford it).236
At the same time, it is obvious that the low quality medical care and degrading treatment of patients are the same problems facing the health
care system as a whole. Both participants of the focus groups and the surveyed deputies share this viewpoint:
Certainly, the quality of medical care must be significantly improved,
especially in the obstetric sphere. Everything is interconnected. The quality of obstetric care cannot differ from that of health care in general. In
order to improve in this area one must consider physicians’ wages, provision of medical equipment and medications to health care institutions,
etc. Medical programs for women do exist, but how much money is
available for the implementation of these programs, and how much
money do they actually require? In other words, of course, this is not
enough.237
231
233
234
235
236
Interview with the Vice-Chair of the Kurgan Regional Duma (in charge of issues related to
implementation of women’s rights ), Kurgan region.
237
Interview with a member of the social policy committee of the Penza Regional Legislative
Assembly.
232
203
Also:
Rudeness, carelessness, poor sanitary conditions — one comes across
these phenomena not only in maternity homes or obstetric consulting offices, but in any health care institution. These are the problems of not
only women’s institutions, but of the health care system in general. And
if you want to be served quickly, comfortably, effectively, and be treated
as a human being at that, then apply to pay-health care institutions.238
Also, focus groups’ female participants said it was impossible to protect
their rights and interests:
In our city of Izhevsk, women’s rights are not protected in so far as they
relate to childbirth. A woman who has faced difficulties in an obstetric
consultancy or in a maternity ward often finds herself in such a humiliating situation…and rarely does she seek redress in any agencies which
could help her protect her interests. I, for instance, do not even know
where to go in case I am humiliated and deprived of adequate medical
treatment.239
Women who apply to municipal health care organizations have to cover the
expenses associated with medical treatment provided to them. These expenses mainly have to do with procurement of the necessary medications
and supplies:
My sister had problems when giving birth. Everything that was necessary
for child delivery was paid for by our parents.240
Also:
Child birth is such a rare thing today that the attitude towards woman
in obstetric ward is good, of course, but frequently doctors ask women to
take care of their own medications, bandage supplies, and supplementary
nutrition. There are well known cases of obstetric wards getting cut off
from central heating…patients’ relatives would bring electric heaters to
keep their women and children warm.241
As reported by regional monitors, when obstetric wards force patients to
provide for themselves, they often do so quietly and unofficially. According
to women’s organizations’ reports, maternity wards in the Penza region
issue “to-buy” lists to their patients that even includes things like detergent, of no use to patients individually but in high demand by the health
institutions.
This is largely due to inadequate funding for the health care system:
Well, naturally, our health care is very low level. It can be explained by
the lack of budget funds allotted for these purposes. And the Health Insurance Fund cannot solve all the problems.242
At the same time, it should be noted that health care personnel tend to
make up for budget shortfalls by unfairly forcing patients to pay for their
medical treatment:
238
239
240
241
242
Interview with a woman deputy, Saratov region.
204
I have quite a few acquaintances who have already given birth or are going to do it soon. The situation in maternity wards is dreadful… no
treatment at all. When you’re done, they throw you on the bed and leave
you to lie there on your own. She cries, she’s in pain, and she only hears,
“That’s nothing, just lie there for a while.” But if you pay money in the
same hospital — there you go: slippers for you, fresh sheets, and so on.243
Also:
A friend of mine works for the railroad which provides her and her
children with certain benefits. When she was giving birth her family
paid one thousand rubles to the hospital. This is usually considered as
free of charge. And not long ago one of our colleagues was giving birth
in one of the municipal hospitals. First, she stayed for two weeks in the
pre-natal ward believing she was about to have a miscarriage, and then
she was told that the delivery would cost 4 000 rubles. Another thousand
she put in an envelope that she gave to the obstetrician who was to assist
her. This is not a commercial but a public hospital, so all these fees were
specified only verbally. No such payment is ever made officially…It is
not only in maternity, but also in other departments that one has to pay
for medications, bandages, gauze, syringes, and other things.244
The majority of women participants in the focus groups share the opinion
that an obstetrician will not take care of a woman in labor unless she/he is
compensated in one way or another:
There is also a notion of “platniki” [paying patients]. When you are able
to pay — you get a totally different attitude — everything is provided for
you, including a single room and an obstetrician who will monitor your
entire pregnancy, prepare you, etc. Here arises the issue of difference.
Why does a financially insecure woman not have the right to decent
medical treatment, normal child birth and a healthy child?245
Also:
The issue is more and more connected to money. Somehow nobody mentions quality anymore; these days one simply hopes to receive the service.246
Also:
Today, there are two categories of women in maternity wards — those
who pay and those who do not pay. All the attention goes to the former,
while the latter hardly get anything.247
Also:
Yes… either for money or for… although it depends on the doctor or
rather on his or her conscientiousness. A friend of mine while she was at
a gynecology ward paid with a bar of chocolate for each injection she
needed to have.248
243
244
245
246
247
248
Focus
Focus
Focus
Focus
Focus
Focus
group,
group,
group,
group,
group,
group,
Moscow.
Saratov region.
Udmurt Republic.
Karelia Republic.
Moscow.
205
The belief that satisfactory medical care can be only obtained for money is
becoming more and more widespread:
These days, getting decent medical care implies a financial commitment.
As mentioned before, the same maternity wards provide paid services
that give more qualified treatment, i. e., everything has to do with
money.249
Also:
I do not have any children but my friends say that in order to give birth
normally one has to pay a lot of money.250
Representatives of executive agencies also share this opinion:
I have developed an impression that if you have enough money you will
get good quality medical care. If you do not have enough money you will
not get good quality medical care.251
We should note that women are generally of the opinion that if worst
comes to worst they will get free medical help, but this care will be extremely minimal and/or of poor quality:
Every person can count on minimal assistance, everything that’s beyond
this has to be paid for.252
Also:
The necessary medical assistance will definitely be provided to a woman.
But quality, efficiency, and individual attention have to be additionally
paid for. Health care institutions, as a rule, do not refuse to help the
homeless, the drunk, or the drug addicts — I do not presume that a doctor would ever refuse a needy person.253
Also:
The woman in our country will never be abandoned. Medical treatment
will be offered to her by all means even if she is a street bum. The different issue is how it should be. The state under-funds the health care
system. Only wealthy women can afford ideal conditions in a maternity
ward, and such are not numerous in our country.254
Note that conditions differ dramatically in the same municipal health care
institution for those who pay and those who do not pay:
My daughter is 18. And it is understandable that it [the experience of
giving birth] was quite a shock for her. She stayed in the hospital
throughout almost her entire pregnancy. She was in a paid ward in order to have at least some of the necessary conditions. But when it was
time for her to give birth it turned out that all the paid wards were occupied. She had to go to an unpaid ward where conditions were intoler-
249
250
251
252
253
254
Interview with a representative of the Ministry of the Internal Affairs, Karelia Republic.
Focus group, Altay territory.
206
able. It was very hot but no window in the ward would open, there was
no ventilation whatsoever.255
A significant number of focus group participants shared the opinion that a
woman entirely relying on guaranteed (free) medical care puts her health
and life at risk and jeopardizes the health and life of her child:
If a woman or her family do not have the money and the woman is
about to give birth, she will not be left out in the streets. Of course, she
will be offered obstetric care, but this assistance will be of such poor
quality that she will have to consider herself and her child lucky if they
both remain alive and well when everything is over.256
Also:
I haven’t thought about this yet but I think that it is better to pay in order not to jeopardize the health of the child.257
Also:
I know of an example in which a friend of mine who could not have
children for a long time eventually gave birth to her first child in obstetric hospital #2. In seven days, the newborn died. This obstetric hospital
was terrible; the attitude towards patients was terrible. It took her a year
to recover from the trauma. Three years later when she was to give birth
for the second time, now in obstetric hospital #6, she and her husband
did their best to ensure that she would have a paid ward and doctors
who would not leave her out of their sight. So, you either have to have
money or very good connections, but it’s better to have both.258
According to regional monitors, free obstetric care does exist formally (albeit not in all the regions), but practically all the maternity wards provide
higher quality, paid services. Women’s organizations in the Novisibirsk region maintain that 33% of women who have given birth in that area paid
for services.
The list of paid services in hospitals that also provide free services is constantly expanding. Usually, hospitals say that woman can choose between
paid and complimentary medical services, but in practice women often find
that they do not have any real choice. This is especially true with respect
to tests. Hospitals, as a rule, do not have enough equipment to provide specialized assistance to women at all stages of their pregnancy. Therefore,
when it is time for her test, the woman is urged to pay for it if she wants
to do it in an efficient manner (free testing is only available to those who
wait in line for several months):
Maternity wards and obstetric consultancies provide a number of services
that are available to everyone free of charge, but there are services for
which doctors recommend payment. Among such services, for example,
are tests, including express testing performed with expensive equipment,
anesthetics that are always required for abortions, and post-surgery rehabilitation. Ultrasound examination must be made available to everyone
free of charge of course, but usually doctors say that the waiting list is
255
256
257
258
Focus
Focus
Focus
Focus
group,
group,
group,
group,
Udmurt Republic.
Saratov region.
Udmurt Republic.
207
so long you will have to wait for two months. Naturally, if you pay for
their services, they will test you on the same day.259
Implementation of the right to free obstetric care is especially insufficient
in rural areas. For example, according to regional monitors, obstetric offices
of the Ust-Kulomsky district of the Komi Republic are in dreadful conditions — they have not been renovated for years on end. Representatives of
government also express their concern about the difficulty of providing
health care services in rural areas:
The hardest is the situation for people who live in remote places, including the rural areas, and also, in our case, military bases, where obstetric
clinics only give out aspirin, let people use an out-of-order weighing
scale, and do nothing else for the benefit of pregnant women. In the regional capital, there are pre-natal diagnostic centers but they would require even greater investments — at least 20—30 million rubles — to become as well-equipped.260
Also:
I am positive that medical institutions of this category must be supported by the state since the majority of women, especially those who reside in the rural areas, cannot afford to pay for health care services.261
It is important to note that the guaranteed free medical care is only available when the person seeking it has medical insurance and seeks care in
his/her place of residence. It has to be specifically mentioned that if a
pregnant woman has no medical insurance policy or is seeking medical
assistance at a place other than the place of her official residence (where
she is registered to live) she can count on receiving obstetric care on a
pay-for-service basis only:
I am registered in a rural district but there are no qualified physicians
there, therefore I have to search for doctors in town and pay money.262
DOMESTIC VIOLENCE
Focus groups participants, when asked, said that domestic violence is not
among the most significant women’s rights problems in the Russian Federation.
However, the problems raised in the focus groups shows that domestic violence is a very serious issue indeed:
It is a most important subject. Because there is not a single family in
which a woman would not be humiliated. And there is nothing a woman
can do about that.263
259
Interview with the Chairman of the Social Policy and Health Care Committee of the Kaliningrad Regional Duma.
261
Interview with the Chairman of the Stavropol Territory State Duma Committee on Social
Policy, Science, Resorts, Public Organizations and Cossacks.
262
263
260
208
Also:
I have a lot of relatives and acquaintances who can serve as examples.264
Many women insist that domestic violence is a mostly hidden phenomenon:
No, I do not know of any such stories in my circle, but one must bear in
mind that the subject is not popular and not everyone wants to discuss it
or, as they say, “wash one's dirty linen in public.265
Also:
Even family members do not have a clue as long as no obvious signs of
battery are seen.266
According to information collected by regional monitors, it is clear that
domestic violence is widespread.
The women’s organization “Femina,” located in the Tatarstan Republic,
conducted a research project which determined that physical violence occurred in 55% of respondents’ families of which in 19% of cases it is relatively benign, in 17% — rather heavy, and in the last 19% — very heavy.
“Femina” also determined that psychological violence occurred in 80% of
respondents’ families.
Women’s organizations in the Rostov region, which also act in the capacity
of a crisis center working with victims of domestic violence and offering
hotline consultations, report that for the period of 2001 and the first nine
months of 2002, they had received over 28 000 calls, out of which more
than one thousand related to domestic abuse of women.
Russian legislation does not provide any specific protection from domestic
violence for women. Currently, legislators are concerned only about domestic violence as it relates to children.267
In essence, there is no state system to protect victims of domestic violence.
This was mentioned by nearly all focus group participants. Many are convinced that women in such situations have nowhere to go:
Violence must not be tolerated. I have never encountered it myself but I
think that in general women have nowhere to go in such situations.268
Also:
I know that there is a problem of violence in families. But I do not know
where a woman can look for help.269
Still, according to the women’s organizations, there are crisis centers and
hotlines. In very few regions, there are also shelters maintained by NGOs.
However, focus groups participants tend to question their effectiveness.
264
266
Ibid.
267
Resolution #313 of December 26, 2001, passed by the Moscow City Duma “On Legislative
Initiative of the Moscow City Duma “On the Draft Constitutional Law “On Amendments and
Additions to Federal Constitutional Law #1 “On Judicial System of the Russian Federation” of
December 31, 1996,” which considers the problem of children, can serve as an example.
268
269
265
209
First, the overwhelming majority of women who have suffered domestic
violence rarely turn to social organizations for assistance due to “fear” and
“shame.” And second, shelters for women who have suffered domestic violence only allow the victims to stay for a limited time. Of course, during
that short time the woman is usually unable to improve her situation or
solve her housing problem.
Recently a shelter has been opened in Novosibirsk for women who found
themselves in a difficult situation. It accepts women who suffer from
violence and are on the verge of family breakup. They can go there. They
will be offered a bed and board. You can stay there, but not for too
long — a week or two. In two weeks, you will have to leave and go somewhere else.270
Oftentimes, husbands and wives do not have the financial means to live
separately after divorce (if their apartment is too small, selling it would not
yield enough money to buy two separate apartments). This fact — plus the
influence of commonly held beliefs like “a child must have a father” or “a
woman must save her family at any cost” — force women to put up with
domestic violence:
Usually, women do the best they can to keep their families intact. To the
question, “Why remain passive and not do anything?” women typically
respond, “The child needs a father.271
Also:
The woman has to be very strong in order to give up such an unhappy
family and become free. The woman is also frequently afraid of public
opinion, which may leave her ostracized for her failure to save her family, for her decision to divorce. That is to say that the woman tolerates
violence in order to retain her social status as a married woman.272
The majority of women suffering from domestic violence do not request
help from law enforcement authorities. This is largely due to women’s lack
of trust for law enforcement authorities (who generally tend to deny these
types of petitions on the grounds that “this is a family matter”). Police officials try to not interfere with domestic issues. They do not register petitions and if did register, they often persuade the petitioners to retrieve
them. First, this is because the would-be relevant Russian legislation is
such that it does not apply to initial petitions unless someone is severely
injured. And second, it is due to the fear that the domestic tyrant will
sooner or later come back from confinement with a vengeance and the
situation will become even more unbearable:
Even if one calls the police, well, [the offender] will be taken away but he
will be released on the next day. He will come back home and the same
thing will continue.273
Also:
Women also refrain from calling the police because they fear they will
not be understood. Police officers are mainly men and they often regard
270
271
272
273
Focus
Focus
Focus
Focus
210
group, Voronezh region.
group, Rostov region.
group, Saratov region.
group. Voronezh region.
the situation unfavorably for the woman. They side with the man saying
that the woman is to blame.274
Also:
I know people who have had experiences like that. They tried asking the
police for help. It did not lead to anything. They were advised to sort it
out themselves. There is no help from law enforcement agencies.275
Also:
In this situation, the woman must first of all go to the police. The police
can take away the one who has committed an act of violence in the family, but how long will they hold him? An hour, two, twenty-four hours.
Eventually, he comes back home anyway and the problem is there
again.276
Also:
Most frequently, it is not the woman but her neighbors who call the police. Women are often afraid of going to the police. The husband will
come back home after that anyway and the beatings will resume and
possibly become even worse, since he will try to get back at her.277
Also:
My father used to be physically violent. Whenever my mother would go
to the police they would tell her, “It’s your family, sort it out yourselves.”278
Also:
I think that our rights to security from domestic violence are not protected. The police do not properly respond to such calls saying that it is a
“family matter.” They do not even apprehend the aggressor.279
Also:
And how many examples, even ridiculous examples. The police was
called and not by the wife who had been beaten but by her neighbors who
felt sorry for her. And she [the wife] goes, “No, no, leave him alone, he is
very good!”280
Also:
I think that calling the police is an extreme measure. If respect is lost
within a family this is no longer a family. Therefore, each woman decides for herself.281
According to the women’s organization “Femina,” which conducted the
aforementioned survey among residents of the Tatarstan Republic:
274
275
276
277
278
279
280
281
Focus
Focus
Focus
Ibid.
Focus
Focus
Focus
Focus
group, Rostov region.
group,
group,
group,
group,
Rostov region.
Tula region.
Udmurt Republic.
Rostov region.
211
Only 40% of those surveyed admitted to having applied for assistance to
the police. Of those who did not apply to the police despite having a reason to do so, 34% did not believe the police would help, 20% were afraid
that the violence would be exacerbated, and 19% were afraid of publicity.
Every fourth application (25%) was ignored. Of the rest of the cases,
one-third saw no further development because of the prohibitively difficult process. In two thirds of the cases, the aggressor was detained for a
certain period, usually one to three days. Only 13% of the victims of domestic violence would undergo medical examination. None of them
would undergo psychological examination.282
The majority of women regard domestic violence as an internal family
problem, which has to be addressed independently without involving law
enforcement agencies:
When I began to live with my first husband he tried to hit me because it
used to be a normal thing to do in the family where he had previously
lived. I had to shake him up a couple of times so that his eyeballs
“sprung out.” After that (we lived together for 12 years) he never raised
his hand against me.283
Also:
I had an experience like that, but I hit him back. My husband attacked my
son, I stood up for him and my husband hit me, but I hit him back. He
hasn’t tried this ever since. But not every woman is capable of doing this.284
Also:
In my family, my father had been trying to raise his hand against me
for a long time, but I rebuffed him psychologically so strongly one day
that he got frightened and I haven’t had any problems of that kind with
him ever since.285
Legislators and administrative officials surveyed in the course of the monitoring effort suggested various possible solutions to the domestic violence
problem:
I think that one can influence this only through mass media.286
Also:
It would be logical to increase the number of crisis centers for women, to
create a shelter for women who need protection, to offer them temporary
refuge.287
Also:
In my opinion, it is public organizations that can address this issue. That
would be very good indeed.288
282
284
Ibid.
285
286
Interview with the Chairperson of the Social Policy Committee of the city of Kamen-naObi, Altai territory.
287
Interview with the leading specialist of the Public Relations Department of Penza Regional
Government.
288
Interview with a woman deputy, Smolensk region.
283
212
Also:
Domestic violence is unfortunately widespread, but there is no public
way to adequately address it. Authorities must take care to prevent violence. A whole system has to be developed to support the victimized person or her entire family.289
Also:
Domestic violence is widespread. Authorities can help improve the situation by funding social programs and supporting the establishment of
women’s rehabilitation centers.290
Also:
I think that we should use the already existing legislation to the fullest
and expand it with supplementary laws whenever it is required. And of
course, women must fight for their rights, think about themselves, and
confront their problems.291.
Also:
In the Saratov region, there has developed a system of interaction among
various agencies working to prevent family problems, including domestic
violence.292
SEXUAL VIOLENCE (EXTRA-FAMILIAL)
The survey conducted among focus group participants indicates that sexual violence is not rated by them among the most significant problems
from the viewpoint of observation of women’s rights. The subject of sexual
violence was practically never raised in the course of focus group work.
According to regional monitors, the number of rape-related criminal cases
has decreased in some regions and increased in others. The share of these
offences within the overall number of crimes varies from 0.24% in the
Komi Republic to 4% in the Stavropol territory.
However, sexual violence belongs to the category of crimes hidden from
public view. Regional women’s organizations note that official statistics on
these types of crimes do not reflect the true picture.
Not all the women who are subjected to violence report to law enforcement authorities. According to the Center for Contemporary Policy Research, only 6—10% of victims go to law enforcement authorities and only
3% of victims ever reach the court.
The monitoring findings help identify the reasons behind this situation.
289
Interview with the Chairperson of the Social Policy Committee of the Legislative Assembly, Karelia Republic.
290
Interview with the Deputy Chairperson of the Duma of the Kurgan region responsible for
women’s rights issues.
291
Interview with a member of the Social Policy Committee of the Penza regional legislative
assembly.
292
Interview with the Deputy Minister of Labor and Social Development of the Saratov region.
213
First, fearing they will be ostracized and blamed, rape victims rarely report the crimes committed against them.
Results of the survey “Attitude of the Population of Naberezhniye Chelny
towards the Problem of Sexual Violence” conducted by women’s organizations in Tatarstan in April of 2000 indicate that approximately one third of
the surveyed individuals (21% of women and 39% of men) are of the opinion that it is victims themselves who provoke sexual violence (by wearing
provocative clothes, flirting, consuming alcohol, smoking, etc.).293
Statements by focus groups participants supporting this viewpoint were
made, but were rare:
The fact is that some of my friends and I have also been raped. None of
my friends reported to the police but I did and I regret it to this day. I
have never been more humiliated, insulted, and condemned than back
then. It turned out that I was to blame for what had happened to me. My
mother saved me from suicide whereas the police almost encouraged me
to commit it.294
Another reason that women rarely go to the authorities with rape allegations is that they perceive the procedure for soliciting evidence as humiliating and ultimately ineffective.
The process is as follows: the victim must report the rape to the police in
order to initiate criminal proceedings. Once the report is received, a warrant is issued for a special medical examination of the victim.
Results of the medical examination and testimony of witnesses are used as
primary evidence in rape cases. Frequently, the medical examination result, which proves forced, violent sexual intercourse, is the only evidence
supporting the victim’s allegations. Although medical examiners cannot
assert whether or not the victim had expressed her consent, they can
prove whether the intercourse had been accompanied by violence.
As reported by the monitors in the Tula region, the medical examination is
sometimes postponed for up to two weeks.295
Third, rape cases are rarely reported is that officers frequently attempt to
talk victims out of reporting their crimes officially, saying that it is very
unlikely that they will be able to find the perpetrator. For example, in Roslavl (Smolensk region), in cases when rape victims had been attacked
from behind and could not see their offenders, police officers advised the
victims to refrain from reporting the crime since they cannot describe the
perpetrator or assist the police in their search.296 Out of 10 rape-related applications processed by the Rostov public organization “Athena Information
Center” in 2001, three petitions were connected with the refusal of the police to begin criminal proceedings for alleged rapes.297
A fourth reason that women do not report rape cases is that state authorities do not provide them with sufficient protection during the investigation
293
294
295
296
297
Information provided by focus groups participants. Stavropol territory.
Regional Report “Discrimination against Women in the Tula region—2002.”
Regional Report “Discrimination against Women in the Smolensk region—2002.”
Report of the Human Rights Commission under the Governor of the Rostov Region, 2001.
214
and court proceedings. As observed by women’s organizations of the
Rostov region, when a girl who has been raped reports the crime to law
enforcement authorities, the perpetrator’s relatives exert pressure on her
to change her testimony. Oftentimes, victims prefer to withdraw their reports altogether claiming that the intercourse was consensual.298
Finally, the majority of women who have suffered from sexual violence do
not receive necessary psychological and legal assistance, usually because of
the shortage of such services. Practically all the surveyed representatives
of women’s organizations and legislators are of the opinion that it is necessary to provide specialized assistance to victims of violence. In some regions, this type of assistance is provided, although women’s organizations
note that as of today there are no regional programs targeted to prevent
sexual violence. Sometimes, the prevention of violence is confined to establishing women’s self-defense clubs and organizations and publicizing materials about personal security and street smarts for women.
The points listed above that account for largely unreported nature of sexual violence also demonstrate that the state neither protects rape victims
nor assists in their rehabilitation.
298
ROAD TO EQUALITY AND DISCRIMINATION
ON THE BASIS OF SEX
L. Zavadskaya
PART I
THEORETICAL BACKGROUND
About Discrimination
A good theory is the key to a solid understanding of the present and the
future. It facilitates a coherent conception of the problem at hand. The
theory of discrimination explains social relations from the standpoint of
violation of equality.
Discrimination is a social phenomenon which has not yet received adequate
formal recognition. It exists, it is discussed and, at the same time, it is not
reflected in legal, economic, or political documents and reports, although it
has been politically outlawed in clear terms. It would seem that in Europe,
discrimination has formally disappeared from modern life but, strange as it
may be, it is woven into the fabric of social relations; some people feel its
effects without realizing that they are being subjected to discrimination.
Patriarchy
Out of six billion people inhabiting the earth, 53% are women and 47%
men. Politicians, scholars, demographers, and specialists in gender problems speak about women as “the disenfranchised majority.”
This can be explained by taking as an algorithm the theory of patriarchy —
the theory that postulates dominance control, and use of force of one sex, on
the other.
The study of patriarchy gives us a window on the past, when dominance
of male over female was considered to be a norm of social relations and the
“strong” sex asserted its power by violence and control. The time of patriarchy is past but it has left its mark on modern social relations.
Patriarchy was a period in the development of civilization when force,
power and control (physical and economic) of the strong sex over the weak
sex dictated the conditions of life in society. It is a system of ideas, views,
traditions, moral norms, measures of responsibility, social relations, and
ethnic and legal principles which society supports, shares and maintains in
all of public and private life.
Patriarchy rejects the ideas of equality and partnership and asserts a hierarchy in relations. Discriminated is rooted in patriarchy.
216
Historically, the power of “patriarchy” is the power of a tsar, prince, patron, warrior, master, husband, father (and often brothers) over a woman
who is assigned a secondary, subordinate role. The same role is assigned to
a woman by society in our days despite the legally established norm of
equality.
The role left to the woman is that of a wife, sister, mother, mistress of the
house. So-called “outstanding women” are merely an exception that calls
greater attention to the rule.
The society which recognizes human rights rejects inequality in principle.
The system of relations based on the ideology of respect for human dignity
rejects patriarchy as a model for gender relations. Rejection of the ideology
of dominance of one sex over the other is the clear path to the equality of
the sexes.
Equality is multi-dimensional: its dimensions are sex, race, nationality, language, and religion, among many others. We can trace the development of
equality and its place in social consciousness and life from its identification
as a social value through the concrete steps of its realization. The gender
aspects of equality are the last to be realized, and are only now entering
public consciousness.
Discrimination and Inequality
In law, discrimination defined as unequal access to a right as a measure of
freedom. The different types of discrimination are a subject requiring
separate discussion.
There are two types of inequality (both of which include gender inequality):
inequality of rights which are established by the law and inequality which
bars access to equal opportunities.. Therefore, rights and opportunities are an
indicator of equality. The presence of inequality therefore testifies to the
existence of social systems which fuel discrimination, by limiting citizens’
opportunities to exercise the rights on which their equality is founded.
Both systems of discrimination are interconnected and, at the same time,
are separate from each other. The former type is characterized by the
norms which produce patriarchal views on the human beings — man and
woman — in society. The second type reinforces the traditional ideas about
the position of the two sexes through a system of legislative provisions in
constitutions, codes, laws, regulations, and instructions which constitute the
official views of the state on equality and its realization. Sometimes, the
state supports the traditional gender roles with the best intentions, without
suspecting its complicity in the reproduction of discrimination and patriarchal views. Examples can be cited from labor law, where “benefits” cancels
out equality and “ban” sometimes means exclusion from equality on the
basis of sex.
Differences Based on Sex
Differences do not necessarily mean inequality. They must be taken into
account but at the same time must not bar access to a right and corresponding opportunities. Differences should differentiate, not prevent access.
Women have a special status in society, which is primarily determined by
their reproductive function.
217
Discrimination is connected with patriarchal views, primarily on the role of
the mother, who, according to these views, must belong to the home and
family. Traditional ideas do not accept equality and in modern society this
problem must be addressed by all available means. Today, the greatest
danger is discrimination in everyday life through the most tightly closed
structure of society — family, tribe, and clan. Discrimination is consolidated through stereotypes, traditions, customs, legends, ethics, morals,
family values, and generally through the norms of behavior. Discrimination
in everyday life is very difficult to overcome.
The doctrine of equality is the doctrine of free people — both men and
women. It is an ideology of freedom under new civilization, which is rooted
in traditions feeding the idea of equal opportunities for the two sexes.
The equality of opportunities is laid down by the Constitution of the Russian Federation (Article 19) and, therefore, its observance is mandatory. If
the lawmaker believes that the equality of the two sexes has been
achieved, then, as a consequence of this, the need of a policy of support for
women becomes obvious. Recognition of the fact that an effective equality,
specifically equality of rights between the sexes is non-existent shifts the
solution of this problem into a different plane — adoption of antidiscriminatory measures in the sphere of opportunities and rights. This
concerns not only the policy but also the legislative strategy in the sphere
of rights and liberties of two subjects, men and women, and the appropriate judicial practices. The well developed legislation in the field of the
rights of women in Russia is generally directed to overcoming the discrimination. However, numerous problems stemming from traditional
patriarchal ideology still obstructs actual equality. The 1993 Constitution of
the Russian Federation has established a legal standard of equality; the
way to compliance with this standard is a system of anti-discrimination
protection measures.
PART II
CONSTITUTIONAL PRINCIPLES OF EQUALITY
IN SOVIET AND POST-SOVIET RUSSIA
(1917—1993)
The constitutional legislation allows one to understand the main views of
society (Soviet and post-Soviet, Russian) on equality.
Up to 1993, the constitutional principle of equality, including the equality
of the sexes, in Russia had three measurements: a class-proletarian measurement, which was laid down in the first Soviet Constitution adopted in
1918, an exemplary-socialist measurement, which was reflected in the Stalin’s Constitution of 1936 and a distributive measurement in the 1977
Constitution of the USSR.
Equality is a main goal of the socialist system. Universal equality has always been considered an idea of socialism. Special emphasis was placed on
the gender problem — the equality of the sexes based not on the physiology but on other, social, cultural and ethnic indicators, the roles played by
the two sexes in society.
218
In all constitutions listed above the subject of women is developed somewhat separately from the general problem. The 1917 resolution allowed the
woman to shed legal dependence and become a de jure free citizen.
In 1918, equality was proclaimed as a proletarian idea, dictated by purely
class views on this problem.
The equality of all people based on class affiliation determined the state on
the equality regardless of sex. The idea of equality of all people on the basis of class (in other words, proletarian) affiliation was characterized by a
series of exceptions which annulled the entire concept of equality, including that of the sexes. The exceptions from equality were made in accordance with the indicators of fundamental importance: class, party, estate
affiliation, etc.
In the 1918 Constitution the principle of equality of the sexes was based on
one and the only idea: to allow men and women enjoy equal rights. However, the equality of the sexes was limited by the idea of equality on the
basis of proletarian origin. This made this standard, an ideal of the revolution, meaningless because of endless exceptions. Equality and Freedom are
universal in any dimension: they form the basis of the doctrine of Human
Rights, which was not integrated and adopted in the young Soviet state.
The situation described above entailed disastrous consequences. Equality,
including the equality of the sexes, was excluded from the universal catalog by the very formulation of the problem. The level of understanding of
the problem was such that the equality of men and women was defined as
a standard equal to the male standard.
The 1918 Constitution declared that “the woman has equal rights with the
man.” It cannot be denied that this was already an important victory. At
first glance, inequality was eliminated. The Bolshevik revolution established the equality of the sexes and this was proclaimed in the 1918 Constitution and in several legislative acts. There was one reservation: in a
peasants', proletarian, patriarchal country there was no actual equality of
the sexes.
For almost twenty years, equality was presented as an accomplished fact.
It was simultaneously a myth and an embodiment of the victory of the
proletarian over the old times. Equality of the sexes became the slogan of
the party, proletarian revolution and establishment of the Soviet state.
Almost two decades later, the 1936 Constitution reproduced and developed
the postulate of equality, including the equality of the sexes.
The idea of equality of the sexes was asserted through the concern of the
state for women. The Leader, Party and State acted as patriarchs playing
the main role in the life of the family and woman. The support rendered to
the family through a system of allowances and “benefits” to which women
were entitled did not allow the head of the family, the man, to be a patriarch in the family. The man was not economically independent and, therefore, was not economically powerful. The economics of the country and of
the family were intertwined so that the Leader and the State were responsible breadwinners for all.
Stalin’s Constitution was the embodiment of the strengthening totalitarian
state, the bulwark of the subordination regime. The family was controlled
not only through a system of benefits but also through repression. Repres219
sion affected many families and in this sense the equality of the sexes was
achieved by means of accusatory formulas ChSIR and ChSVN (Russian
acronyms meaning respectively “member of the family of a traitor to the
homeland” and “member of the family of a people's enemy”).
In Stalin’s Constitution, the man did not figure as a subject of constitutional relations: otherwise he would be competitive with the Leader. In the
history of the Soviet legislation, the man is a very weak, legally bleak figure compared to such a subject of law as the woman-mother. The man of
that time is insignificant as a personage in the history of the equality laws.
Husband, family and children are not the triad in which the state was interested. The man viewed from the standpoint of the concern for him is
not interesting and politically incomprehensible in a backward and essentially peasants' patriarchal country. Stalin’s Constitution makes practically
no mention of the husband, man.. Equality of the sexes was destroyed
through exclusion of one sex and absence of any mention o this sex in the
Fundamental Law of the country. Repression strengthened and negated
the very idea of a right as a standard of freedom and dignity equal for all
people.
Stalin’s period was an importance stage in the “concern” for equality and,
paradoxical as it may seem, simultaneously generated the idea of positive
discrimination on the basis of sex (benefits, allowances, support) rather
than on the basis of elimination of the causes of discrimination against
women. Since that time, “concern” has become a part of the “strong” policy
in respect of the “weak” sex, which is pursued today mostly in respect of
women-mothers.
The period described above was the most tragic stage in the history of
Russian equality and the equality of the sexes in particular. It was characterized by hypocrisy and a disease known as “pseudo-equality, always and
in everything, at any price” and ended in the late 1960s, well after the
Leader's death.
The third stage in the development of the idea of equality in the Soviet
constitutional legislation was marked by “developed socialism” and the
1977 Constitution. The 1970s were the time of the distributive equality,
tinted by the idea of the final victory of socialism and the achievement of
equality of everyone and everything. The idea of the equality of the sexes
was reaffirmed and found its expression through the system of positive
discrimination: guarantees, benefits, allowances, the state's concern for the
family and the woman and, by contrast, in only one constitutional norm
which concerned the husband-father.
The system was based on the ideological supposition of the equality of all
people in the distributive relations under the conditions of developed socialism. The state distributed the essentials and thereby controlled their
receipt through a standard of equality. The living standards were uniformly controlled through a system of payment “by labor” and through
other channels. The gender equality, i. e., equality of the sexes determined
through socio-cultural roles of the two sexes in society was “achieved” by
means of a system of support through public consumption funds rather
than by means of economic regulators. The structure of the economy was
so relative that it allowed the Party and the Leader to do whatever they
thought necessary. It occurred to nobody to raise the question of discrimination on the basis of sex since the idea of equality was not discussed but
220
instead taken for granted and accepted as a dogma by the whole Soviet
society. The illusion of the equality of the sexes did not rely on nothing.
Over fifty years, this myth was firmly established in the minds of Soviet
people. The idea of equality was exploited as a strong slogan at all party
congresses, manifestations, meetings, in the life of Soviet society and separate collectives. The idea that equality has been achieved nipped any criticism in the bud. Even dissident literature did not contain the general postulate of equality because it concentrated on the struggle for freedom.
The principle of equality, including the gender aspect, was formulated in
the 1977 Constitution as a fait accompli. In the 1977 Constitution the guarantees of equality were based on the idea of the “equality of distributed
opportunities” but they were addressed to the woman and, through her, to
the family.
The 1977 Constitution did not raise the ideas of the gender equality and
even obscured the problem of discrimination on the basis of sex, a problem
which was difficult to expose but remained unsolved. The principle of the
constitutional equality in the 1977 Constitution is very convenient for consumption. It offered many guarantees, very good ones so far as distribution
was concerned. They were connected with the possibilities of the socialist
economy. However, these guarantees were dependent on distribution in the
conditions of non-functional mechanisms of the socialist economy.
In the 1990s, distribution and re-distribution is taking place in the Russian
society through market mechanisms. This is the first condition for the realistic guarantees of equality. Any other approach is doomed to remain an
illusion, pleasant as it may be. The collapse of the socialist economy was
predetermined as was the idea of socialism and its main value — that of
equality.
It would seem that Soviet socialism is dead and, therefore, equality, including the equality of the sexes and the very idea about it in its Soviet
interpretation should have died together with the corresponding economic
and social ideas. However, this has not happened. The myth about the
achieved equality of the sexes has survived and lives on now to the beginning of the third millenium. It has become part of our reality and it is very
difficult to overcome it in the contemporary Soviet society.
In contemporary history there was one more shift in the development of
the idea of equality of the sexes. In 1992, the Supreme Soviet of Russia
introduced an amendment to the text of the 1977 Constitution which abolished the guarantees of equality and de facto released the state from the
responsibility to the woman for achievement of equality in the sphere of
opportunities, rights and liberties.
From 1992, the path to equality has acted on a familiar principle: “the man
and the woman have equal rights.” It was only by a constitutional amendment that it was recognized that the equality of rights was achieved and
there can be no question of any additional systems for assurance of equality, such as assurance through guarantees of equal opportunities. The 1992
constitutional norm about the equality of the sexes was based on the idea
that only legal equality can be achieved. The guarantees as possibilities of
the socialist re-distribution system were excluded. The socialist regulators
did not work and, as a result, the system of guarantees to women, primarily women-mothers, became unworkable.
221
Opportunities and their equality as guarantees on the part of the state
have become part of history — the history of a totalitarian state and the
dependence of people — men and women — on this state. The choice was
made in favor of the freedom of a human being. And in the conditions of
freedom, equality is qualitatively different.
Gender equality can be achieved through the struggle for such equality
rather than for a myth of achieved equality. It is necessary to fight against
the widespread idea that social guarantees must be tied in only with the
woman.
Gender equality must be real, must not be connected with the illusion of
support and concern and must have nothing to do with the myth about
equality.
The equality of rights in Russia is practically undisputed (although I believe that here, too, there are some grounds for a dispute). It is the equality of opportunities for both sexes that is a real subject worth of study.
The equality of opportunities in the world of the free economy is not a
guarantee for women like those who lived in the Soviet time. Equal opportunities for the two sexes in society are connected with the real understanding of the problem. The socialist guarantees became a thing of the
past but, despite the presence of patriarchy and discrimination on the basis
of sex in the world of freedom, people still cling to the myth of equality.
The laws on equality must fit into the framework of real economic relations. Equal rights and opportunities for men and women must reflect the
political spectrum of the new time, the time of change.
The Constitutional Assembly and the Constitution of 1993 corrected the
mechanism of achievement of gender equality through a two-sided system
for its assurance: the equality of rights and the equality of opportunities. It
is this approach that cuts off discrimination and the state must act as a
guarantor of this promising constitutional norm. The equality of rights is
already a victory over patriarchy. The equality of opportunities for the two
sexes in the conditions of freedom can be achieved by means of real measures in the fight against discrimination, patriarchal views and relations in
the economy, politics, everyday life, where the woman is dependent on the
stereotype of submission to the man. The equal position of the two sexes in
society may be real only when the state ensures the realization of the
standard of “equal rights and opportunities” through a system of antidiscrimination measures, including legislation.
If the state admits that equality has not been reached, it must take measures to achieve equality in accordance with the Constitution. There must
be different measures and they must be reduced to the procedures for assuring and guaranteeing equality, “equal rights and opportunities.”
Whereas equal rights are laid down in the Constitution of Russia and various legislative acts, equal opportunities as procedures for achievement of
equal rights have merely been declared and a great deal has to be done in
the future to introduce them in society, in real socio-cultural relations.
The constitutional norm about gender equality (Part 3, Article 19 of the
RF Constitution) is methodologically correct and does not raise any doubts
about our understand of equality not only as legally established rights of
men and women but also the exercise of the rights in practice.
222
The life in society without traditions is impossible. However, if the tradition violates the constitutional standard we have to oppose such tradition
running counter to our own ideas of equality incorporated in the Constitution. The tradition of patriarchy is dangerous for two main reasons: first, it
contradicts the ideology of equality of rights and, second, it destroys the
basis of the policy of gender equality by distribution of benefits instead of
the use of economic levers of equality.
In 1993, Russia adopted its new Constitution and by proclaiming that “the
man and the woman have equal rights and liberties and equal opportunities for their exercise” assumed an obligation to follow these principles. A
new shift in the comprehension of the equality of the sexes demonstrates
that the old stereotypes have been broken and, hopefully, the corresponding myths have been abandoned. This shift has been written into the new
paradigm of the individual right as a measure of freedom of equal subjects
irrespective of sex.
PART III
POLITICAL RIGHTS IN THE CONTEXT
OF GENDER EQUALITY
Legal Protection of Equal Opportunities in the Exercise
of the Right to Be Elected. Problems and Search for Solutions
The political rights laid down by the 1993 Constitution are free from gender asymmetry. They clearly reflect the doctrine of the equality of the political rights of men and women. This constitutional norm is universally
accepted and indisputable. It fully conforms to the ideas accepted by society about the right and opportunity of the two sexes to elect and be
elected and to the universal international standards in this sphere.
Article 32 of the Constitution of the Russian Federation fully corresponds
to Article 25 of the International Covenant on Civil and Political Rights:
Every citizen shall have the right and the opportunity, without any of
the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through
freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be
by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his
country.
The constitutional right to vote is also laid down by the current legislation.
This right is realized in practice without any gender asymmetry. So far as
the right to be elected is concerned, the public shares this right at the legal-normative level (as confirmed by the adoption of the Constitution by
the popular vote). However, in the course of elections the public casts
doubt on this right in respect of women. This is confirmed by the 1999
parliamentary elections where a mere 7.8% of votes were cast for women
who ran for the State Duma. The elections demonstrate the adaptive na223
ture of the constitutional principle of equality and of the degree to which
the public shares this principle de facto.
In real political life, the woman is actually denied the right to be elected.
This right is realized in the political relations with great difficulties but in
the course of elections it retreats before the stereotype of men being the
only participants in the exercise of power. Therefore, the standard laid
down by the 1993 Constitution of the Russian Federation is not upheld in
real life.
We know nothing about the Russian judicial practice in the sphere of protection of persons who suffered discrimination on the basis of sex in the
course of elections. Given the general provisions of the election laws and
the absence of a matrix allowing discrimination to be established in a concrete case, it is difficult to develop the tactics of judicial protection of the
right of women to be elected. In the context of the traditional legal regulation this access is duly ensured. The law made men and women equal and
they may be elected without any exceptions. However, they have this right
but do not enjoy equal opportunities to be equal in the access to power.
As was mentioned above, four years ago 7.8% of women and 92.2% of men
received mandates of deputies of the Sate Duma of the Russian Federation.
It is this statistical data that must be used as a basis when searching for
methods of judicial protection of equality and struggle against discrimination. It must be admitted that the law has not been violated. The constitutional norm (Article 19) has been observed as regards the equality of rights
of the two sexes, i. e., in principle, the right of women and men to be
elected is not disputed from the standpoint of rights. However, what is or
may be disputed is Part 3 of this Article, i. e., the constitutional requirement about “equal opportunities” for the two sexes.
However, how can one, at the level of court protection, successfully reconcile the violation of the constitutional principle of equal opportunities and
the violation of a subjective right of a woman to be elected? This can be
done only if the court accepts the argument offered by the statistical data,
which is highly improbable. The court is used to see the paradigm of the
“freedom of election” and closes its eyes to the paradigm of “equal opportunities.” Is it logically acceptable that the “freedom of election” will be
restricted by equality?
From the liberal point of view the freedom of election is not restricted if it
is not abused and equality does not compete with freedom. The voter is
free to elect any candidate regardless of the gender characteristics. Today,
this is the main thesis by which the court abides. However, there is a serious reservation connected with the official recognition of discrimination in
society. The UN Convention on the Elimination of All Forms of Discrimination against Women stipulates in Article 3:
States Parties shall take in all fields, in particular in the political, social,
economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the
purpose of guaranteeing them the exercise and enjoyment of human
rights and fundamental freedoms on a basis of equality with men.
Apparently such measures may include introduction of quotas, because,
according to the Convention, “Adoption by the State Parties of temporary
special measures at accelerating de facto equality between men and
224
women shall not be considered discrimination as defined in the Convention” (Article 4). Introduction of quotas will make it possible to defend the
rights and opportunities in courts, if the quotas are not observed. The Convention has been ratified but the attitudes towards establishment of gender quotas is negative.
There are no definite formalized standards showing violation of the equality with regard to the access to a right. However, victims must not be denied protection merely because the court is not used to protecting “equal
opportunities.” Victims can be protected if, for instance, we cite concrete
cases where such opportunities were denied in the course of elections during the struggle between competitors — a man and a woman. The measure
of equal opportunities is rather subjective but the fact of discrimination is
quite concrete.
When an application is brought to a court in connection with the fact of
discrimination it is necessary to pay attention to the norms of material law.
In particular, they pay attention to to Part 3, Article 19 of the Constitution
of the Russian Federation, the clause of the election legislation guaranteeing “equal rights and equal opportunities” for the two sexes and to the
clause of the criminal legislation which establishes punishment for violation
of the principle of equality. The material legislation also includes the International Convention on the Elimination of All Forms of Discrimination
against Women which has been ratified by Russia and, by virtue of Article
15 of the Constitution of the Russian Federation, is “an integral part of the
Russian legal system.”
The presence of an adequate legislative base is already a victory because it
makes it possible to fight against discrimination from the position of the
protection of equal opportunities.
The second key requirement for such protection is gathering evidence in a
concrete case. The evidence must be sufficient to convince the court of the
presence of discrimination on the basis of sex against one of candidates in
the course of election in a specific electoral precinct.
There may be difference kinds of evidence proving discrimination: provocative leaflets, audio and/or video recordings of candidates running in
the election race which contain sexist statements affecting the honor and
dignity of a person, brochures expressing such views which are distributed
during the election campaign, etc.
Thus, many different kinds of evidence may be used but all evidence must
confirm that there has been a fact of discrimination on the basis of sex
rather than for some other reasons. The evidence in the case must include
all information which proves that “sex” specifically was the basis of discrimination.
Such approach opens the way to real court protection.
ANTI-DISCRIMINATION ASPECT
OF INTERNATIONAL LAW
N. Kravchuk
The very first international human rights documents already contained
provisions prohibiting discrimination against women. The Preamble of the
Universal Declaration of Human Rights adopted by the UN on December
10, 1948, notes that the Declaration is to be viewed as a standard to which
all peoples and states should aspire. While not a legally binding treaty, the
Declaration has nevertheless become a key source of not only international
but also national law, and it serves as a model widely used by numerous
countries for their Constitutions. Article 2 of the Declaration states that
everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth
or other status. In the ensuing 50 years, all international and national antidiscrimination law has grown out of this Article.
The next phase was marked by the adoption in 1966 of the so-called twintreaties, the International Covenant on Civil and Political Rights (ICCPR)
and the International Covenant on Economic, Social and Cultural Rights
(ICESCR). Further to the principle asserted by the Universal Declaration,
the Covenants contain articles prohibiting discrimination on any grounds,
including discrimination based on sex.
The concept of “discrimination” as defined by the Universal Declaration
and two Covenants has acquired new dimensions, particularly in relation to
the issue of equal rights. Both science and law are now looking at the
“negative” and “positive” varieties of discrimination, depending on its intentions and consequences. Under this approach, negative discrimination is
understood as any kind of impairment of rights, while positive discrimination manifests itself in the form of various privileges and advantageous
treatment. Both negative and positive discriminations can be not only direct, i. e., incorporated into laws (de jure discrimination), but also indirect,
i. e., emerging in real life (de facto discrimination). In their attempts to
eliminate de facto discrimination, states must abstain from discriminatory
actions or practices of any kind. In addition, states must ban discrimination
against women by individuals or organizations.1
At a certain phase of its development, international law singled out socalled collective rights. These are special rights of those categories of people who, due to social, political, physiological, or any other reason have not
had the same opportunities to exercise rights and freedoms common to all
1
The United Nations and International Law (American Society of International Law and
Cambridge University Press: 1999, p. 194).
226
people and, by virtue of this, need particular support from both the government and the international community. The range of subjects of such
rights is fairly wide and includes minors, retired people, the handicapped,
the unemployed, refugees, ethnic minorities, etc. Women also belong with
the vulnerable groups listed above and need special protection from the
government because they, primarily for physiological reasons, do not have
the same opportunities as men in enjoying human rights and freedoms.
In addition to a number of legislative acts of a general nature that have
effect on the situation of women, the UN has also adopted several specialized documents aimed to regulate this particular category of subjects of
law. Thus, in 1967, the UN adopted the Declaration on Elimination of Discrimination against Women and, in 1979, the Convention on Elimination of
All Forms of Discrimination against Women. The latter Convention
(CEDAW) establishes general principles and measures to ensure equal
rights for women throughout the world. Under Article 29 of CEDAW, any
dispute between two or more member States relating to the interpretation
or application of the Convention that has failed to be resolved by negotiation shall be submitted for arbitration, upon request of either party. In the
event that the parties are unable to come to an agreement on the arrangement of such arbitration within six months, either party can refer
this dispute to the international court by filing an application in accordance
with the status of the court.
The USSR ratified CEDAW in 1980. After the dissolution of the Soviet Union, the Russian Federation became its successor under international treaties and agreements, including the aforesaid Convention.
Functioning within the framework provided by the Convention on Elimination
of All Forms of Discrimination against Women there is a Committee whose
tasks include the review of periodic four-year reports of member States on
legislative, judicial, administrative and other measures taken to implement the
provisions of CEDAW and on the progress achieved in this field.2
On October 6, 1999, the UN General Assembly approved an Optional Protocol to CEDAW (also binding on the Russian Federation) that gives individual women and women’s NGOs the right to file individual complaints
about violations of the Convention. Complaints may be filed with the UN
Committee for Elimination of Discrimination against Women by individuals, groups of individuals, or organizations that have suffered damage or
have been otherwise affected as a result of a violation of the rights contemplated in the Convention.
The adoption of CEDAW in 1979 has raised the task of leveling the rights
and opportunities of men and women to the level of international law. For
the first time, an international document was specifically devoted to this
issue. However, in the course of the World Conference on the Situation of
Women (Nairobi, Kenya, 1985) it became clear that the ratification of the
Convention had not fully helped to accelerate the economic progress of developing countries, which should have allowed to expand the scope of
women’s involvement in the processes of economic and social development.
The Nairobi Conference also made a substantial contribution to the interpretation of the concept of “equality of the sexes.” Since then, equality has
2
Winter J, Human Rights and Human Wrongs. A Guide to the Human Rights Machinery of
the United Nations (British Irish Watch: 1999, p. 73).
227
started to be viewed not simply as a legal concept, i. e., de jure elimination
of discrimination, but rather as the rights, responsibilities and opportunities for women to be involved in the process of development not only as an
active force, but also in the capacity of recipient of its benefits.3
The issue of violence against women both during military confrontation or
armed conflict, and at times of peace was included for the first time as a
separate item on the agenda of the World Conference on Human Rights
held in Vienna in the summer of 1993. The documents adopted by the Vienna Conference declared that violations of women’s rights in situations of
armed conflicts constituted violations of fundamental principles of international law in the fields of human rights and humanitarian law. The Vienna
Conference’s Declaration also emphasizes the importance of working to
stop violence against women in social and private life, the elimination of all
forms of sexual infringements, the exploitation and illegal trading of
women, and the elimination of the harmful consequences related to certain
traditional or customary practices, cultural prejudices, and religious extremism.
The Vienna Conference recommended the General Assembly to adopt a
Declaration on Violence against Women, and firmly called upon States to
fight this phenomenon. In the same year, 1993, the Declaration on Elimination of Violence against Women was adopted. In this Declaration, UN
member States assumed the obligation to include in their human rights
reports filed with the UN, information on violence against women and
measures taken to eliminate it, along with a review of trends in this field.
In addition, the UN Commission on Human Rights appointed a special rapporteur on violence against women.
The Fourth World Conference on the Situation of Women (Beijing, 1995),
attended by as many as 35 000 women participants from all over the
world, noted a regression in the progress of women’s rights all over the
world. This was caused, among other factors, by the lack of effective controls on the performance of States and their obligations in the field of
women’s rights at both international and national levels. The Conference
developed proposals aimed to help bridge this gap by the international
community and by each State that had ratified the Convention on Elimination of All Forms of Discrimination against Women.
To note, following the Beijing Conference, the Russian Federation adopted
a “Concept for Improvement of the Situation of Women in the Russian
Federation,”4 and set up a Commission to support concerted efforts by both
federal executive bodies and executive bodies aimed at the improvement
of the situation of women.
The problem of rooting out discrimination against women is reflected in
the work of a range of specialized UN institutions that perform legislative
functions in various fields of human rights protection. Some of these UN
institutions also have international supervisory authority.
The UN Commission on Human Rights is the key human rights body of this
system. Every year the Commission reviews, in relation to various items on
the agenda, issues of women’s rights, such as trafficking of women and girls,
3
S. Polenina, Rights of Women in the System of Human Rights: International and National
Aspects (Moscow: 2000, p. 10).
4
Resolution of the RF Government dated January 6, 1996.
228
elimination of violence against women, or integration of women’s rights into
the UN system.5
We should also mention the International Labor Organization (ILO). Convention #100 on equal compensation for men and women for work of equal
value, adopted by ILO on June 29, 1951, and ratified by the USSR on
April 4, 1956, established for the first time the legal principle that compensation rates for work of equal value must be set with no discrimination
based on sex. Notably, the Convention specifies that compensation includes
regular, primary, or minimum wages, and any other compensation provided directly or otherwise in cash or in kind by the employer to the employee for the work performed by the latter.
* * *
The Universal Declaration and the two International Covenants (ICCPR
and ICESCR) have provided the foundation for the development of regional human rights protection systems in Europe, America, and Africa.
The European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention, November 4, 1950) is a regional
legal agreement, under which most European states, including Russia, have
assumed obligations to honor basic human rights.
The European Convention has been universally recognized as one of the
key documents in the context of contemporary international law, because:
•
•
it has established the first international procedure for filing complaints,
and the first international court to review issues related to human
rights violations;
it has lead to the development of unprecedented and significant judicial practice.6
Article 14 of the European Convention, in line with Article 2 of the Universal Declaration, confirms the prohibition of discrimination based on sex
among other types of discrimination. For a long time, this legal norm was
only supplementary, i. e., a complaint about the violation of the prohibition
of discrimination could be made only jointly with a complaint about the
violation of another right granted by the Convention. However, in recognition to the extraordinary importance of this provision, supplementary Protocol 12 to the European Convention was adopted on November 4, 2000,
according to which a complain about the violation of the prohibition of discrimination can be filled on its own merit. To date, this protocol has not yet
become effective.
The efficacy of the European Convention is based upon two factors. Firstly,
the Convention is an agreement binding upon the states that have adopted
it. Secondly, the Convention has established an international legal mechanism that makes it possible to complain against violations of the Convention’s provisions committed not only by States but also by individuals and
organizations. Since rulings of the European Court of Human Rights, based
in Strasbourg, are binding upon the states to which they relate, the Con5
Human Rights Reference Book (Netherlands Ministry of Foreign Affairs, Human Rights,
Good Governance and Democratization Department: 1999. p. 91).
6
Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics,
Morals (Oxford University Press Inc., New York: 1996. p. 571).
229
vention and the jurisprudence of the European Court also constitute the
basis for legal regulation of the situation of women on the national level.
The Convention aims to protect civil and political rights. Social, economic,
and cultural rights are regulated by a separate regional legal document,
the European Social Charter adopted on October 18, 1961. The European
Social Charter reiterates a number of provisions of the ILO Conventions
regarding protection of labor rights of women employees: the right to
equal compensation for equal work; the right to maternity leave; the right
to breast feeding breaks, etc. (Articles 4, 8). The difference between these
two pan-European conventions is significant as the Charter provides no
mechanism for individual complains against violations of rights granted
thereby. The European Social Charter is not yet ratified by the Russian
Federation.
While being regional documents from the perspective of international law,
the European Convention and the European Social Charter have made a
weighty contribution to the unification of European regulations governing
human rights, including gender equality. This is evidenced, among other
things, by the fact that since the early 1970s the European Court has issued more than 50 rulings intended to facilitate the implementation of the
principle of equal rights of men and women.
We should also mention in this regard the European institutions working to
protect women’s rights. The objective of the European Committee for
Equality of Men and Women is to ensure equal opportunities for women in
all functions of the Council of Europe. The Committee is involved in researching the situation of women in the European community and facilitates cooperation between the Council of Europe and its members in this
field.
The European Committee for Equality of Men and Women has a very
broad mandate covering drafting of resolutions, follow-up actions on
adopted resolutions, and collaboration with various bodies of the Council of
Europe.7
The Constitution of the Russian Federation reiterates the principle of nondiscrimination based on sex (Article 19). In addition, Russia has ratified the
dominant majority of international human rights documents listed above,
and submits performance reports on its international obligations, including
those on the rights of women.
7
Human Rights Reference Book (Netherlands Ministry of Foreign Affairs, Human Rights,
Good Governance and Democratization Department: 1999, p. 92).
THE PLIGHT OF WOMEN IN CHECHNYA
O. Trousevich
Women continue to be one of the most vulnerable and discriminated against
groups in Chechnya. They have not only fallen victim to the “second Chechen war,” but also have become increasingly involved in the conflict.1
Contrary to the established stereotype of the “oppressed women of the
East,” Chechen women have been known play an active role in local societal
life, both in pre-Soviet and Soviet times. Now and again, they have been
targeted for their pro-active social involvement in present-day Chechnya. By
way of example, the night of November 29—30, 2002, saw the killing of
M. Oumzhayeva, former head of the Alkhan-Kala administration, of the
Grozny (rural) district. She had held that position from June 2001 through
September 2002.2 Her house was raided by four Russian servicemen, who
proceeded to perform an unwarranted search. Shortly afterwards, they
walked M. Oumzhayeva out into the backyard and shot her death. Oumzhayeva’s killing should be categorized as a political murder carried out by
agents representing the federal power. Oumzhayeva, head of the local council of elders (an informal traditional structure), had been nominated by the
residents of Alkhan-Kala to fill the position of the head of local administration. Ignoring threats from members of the locally deployed federal forces,
she had stood up for the interests of the locals, thereby growing to be a
public figure conspicuous in Chechnya and elsewhere.3
* * *
Massive and indiscriminate bombings and shelling,4 which resulted in a
heavy loss of civilian life, ended in the Chechen Republic as far back as the
1
Publications on the plight of women in the Chechen Republic have been rare and far between,
the issue failing to be in the focus of specialized public debate. For detailed description of the
state of things in the initial stage of the “second Chechen war” please see: “On the Status of
Women in the Territory Engulfed by the Armed Conflict in the Chechen Republic Within
1999—2000” in Human Rights in Russian Regions (Moscow: Moscow Helsinki Group, 2000).
2
For more detail see “Malika Oumzhayeva Killed by Federal Forces” on the “Memorial” website. (www.memo.ru)
3
She attracted the attention of the Los Angeles Times, Novaya Gazeta, Noviye Izvestiya and
other major periodicals. She was asked to come to Moscow and attend a conference (held
November 9—10, 2002) on finding the way to assure a peaceful solution to the armed conflict
in Chechnya.
4
See, for one, Human Rights and Humanitarian Law Violations in the Armed Conflict in
Chechnya, Issue 1. “Pinpoint Strikes: Indiscriminate Use of Military Power by Federal Forces:
September-October 1999.” Report by the “Memorial” Human Rights Center. (Moscow:
“Zvenya,” 1999).
231
first half of the year 2000. It was then that the killing of civilians (including
women) was reported when the federals “combed” the local communities.5
However, these mop-up operations were staged again and again (with
some communities being “cleaned up” 20—30 times). Notably, the raids
were accompanied not only with burglaries and beatings, but also with
shooting that inevitably produced fatalities and wounded, some being
women (they often attempted to intervene, believing that the military
would not dare use their weapons).
On January 14, 2001, in the course of a regular mop-up operation in
Stariye Atagi,6 during which Russian servicemen tried to detain 37-yearold Kh. Elzhourkayev (an invalid suffering from TB) on the grounds that
he possessed old newspapers, one of which (Ichkeria) featured a picture of
A. Maskhadov, President of the Chechen Republic of Ichkeria, some of the
local women suffered badly for standing up for the disabled man.
While being fearful that Elzhourkayev might just “disappear” following his
detention, the women demanded they be told what the local disabled man
was being charged with. With no answer being provided, the women
moved and forcefully wrested Elzhourkayev away from the soldiers, then
encircled him. In response to the women’s fierce resistance, the soldiers
beat them up, and used tear gas and weapons against them. One woman
was shot to death, with others receiving bullet wounds, assorted injuries,
and chemical poisonings.
Also, Chechen women often sought to stick up for their loved ones in the
course of so-called “special operations,” when uniformed federals would
arrive aboard their armored vehicles after dark and carry away some of
the local residents, who often “disappeared” without any trace. To provide
another example, April 20, 2001, around 5 a.m., a federal military team
arrived at the house of A. Jaoubatyrova (born 1957) in Alkhan-Yourt, Urous-Martan district, and picked her up. Following these circumstance she
has never been heard of again.7 Having broken down the door and a window, the military raiders rushed into the rooms and opened fire. Completing their unauthorized search and finding nothing impermissible, they detained M. Elsiyev, Jaoubatyrova’s son. Notably, the military declined to
explain of what he was suspected. After Jaoubatyrova started to aggressively press on with her demands and cries for help, she was also detained.
When approached by the relatives of M. Esiyev wanting know his fate,
officials from all local law enforcement structures said they had nothing to
do with the incident. Subsequently, some of the relatives managed to find
out informally from a source at the local district administration that the
detention had been performed by members of the district FSB (Federal
Security Service) office, and that the detained had been dispatched over to
Khankala. Alarmingly, though the relatives approached the local military
5
In particular, in Grozny, Staropromyslovsky district and Noviye Aldy, the latter case being
extensively covered by Human Rights and Humanitarian Law Violations in the Armed Conflict in Chechnya, Issue 2 “Combing Operations: Premeditated Crimes Against Civilians.” Report by the “Memorial” Human Rights Center. (Moscow: “Zvenya,” 2000).
6
For more detail see Human Rights and Humanitarian Law Violations in the Armed Conflict
in Chechnya, Issie 2 “Counter-Terrorist Operation: Stariye Atagi — September 1999 — May
2002.” Report by the “Memorial” Human Rights Center. (Moscow: “Zvenya,” 2002).
7
Human Rights in Russian Regions — 2001 (Moscow: Moscow Helsinki Group, 2002).
232
prosecutor’s office, republican administrative and law enforcement authorities, they could not fix the exact whereabouts of their loved ones.
Quite frequently, the dead bodies of the “disappeared” persons have been
uncovered. Alas, it is often too difficult to identify them, due to the numerous injuries and wounds sustained from either torture or gunshots, or
grenade explosions. This explains why not all of the remains are easily
identifiable. However, there have been a few cases where the dead bodies
were identified.
On the night of January 27—28, 2003, in Urus-Martan a team of armed
men seized S. Khourikova (Tsagareva) (born 1977) in her own house about
300 meters away from the local commandant’s office.8 Though the very
next day her relatives approached all local law enforcement offices, including the prosecutor’s office of the Urus-Martan district, their applications
and pleas were to no avail, with any and all officials denying their involvement in the matter.
On February 10, 2003, on the edge of the village of Belgatoy, Shali district,
locals came across the dead body of a young woman — armless, decapitated, and with numerous traces of torture. The body was speedily moved
to the local mosque where it was left lying for three days. It was then buried, the remaining clothing kept preserved as possible help in an identification effort. A few days later the village was visited by the victim’s relatives, who immediately recognized the clothing items that their loved one
used to wear. When the body was exhumed on February 21, it was quickly
recognized as that of S. Khourikova.
A few years before, S. Khourikova’s husband (a local Islamic school
teacher) was killed in 1999 during a bombing of Urous-Martan, while her
brother M. Tsagarev (a field commander) was killed in 2001. However, it
would be foolhardy to conclude that Chechen residents fall victim to summary executions exclusively on account of their being linked with individual extremists or the forces of resistance as a whole. As an armed conflict
continues, all kinds of people lose their lives.
Z. Javatkhanova, for one, 35 years of age, from the village of NokhchiKeloy, Shatoy district, mother of five children and pregnant with yet another baby, was killed January 11, 2002, by members of the Russian special forces as she was returning home from Shatoy, where she had been to
see the doctor about some particulars of her pregnancy.9 On the morning of
January 11, 2002 a special operation was launched to comb the rural communities in the south-eastern corner of Shatoy district. A landing party of
troops was delivered to the village of Dai.10 The commandos arranged an
ambush, which they effectively used to fire upon a Jeep-like vehicle as it
moved down the street with six people in it, one of those being Javatkhanova. Three persons were killed, three others (including one woman) were
seized, carried away, questioned, tortured, and killed. Their dead bodies
were thrown into the off-road vehicle and torched.11
8
Fore more details see “New Reports of Uncovered Dead Body of Female Abducted by Federal Forces.” (www.memo.ru)
9
For more detail see “Tragic Events in Shatoy District in January 2002” (www.memo.ru).
10
Leading the team was Colonel V. Plotnikov.
11
All of the killed were civilians: school principal — 65 years of age; executive secretary — 44
years of age; forester — 44 years of age; driver — 45 years of age; young man — 31 years of age.
233
To add, Chechen women have frequently been sexually violated as well.
However, such crimes not only fail to be investigated, but they even get
passed over in silence. This can be explained by the prosecutors’ clear reluctance to look into such cases, and also due to the fact that this topic has
traditionally been “taboo” within the ethnic communities populating the
Northern Caucasus.
November 11, 2002, a team of servicemen illegally detained five persons (a
taxi driver and four passengers) at a checkpoint on the edge of Shali.12
Shortly thereafter, three of the five people were released. The two remaining passengers (both females that had been raped by the checkpointmanning soldiers) were also then let go. Following that incident, the two
male passengers, V. Agouyev and Kh.-M. Aboubakarov, “disappeared.”
Alarmingly, the prosecutors not only chose not to prosecute the criminals,
but even refused to do so following the express intervention in the matter
by the Human Rights Center “Memorial.”13
Now and again, the materials released following prosecutorial inspectionruns have become shockingly cynical. Here is what the local prosecutors
had to say as part of their oversight coverage of two mop up operations at
Stariye Atagi:14
Following in-depth research into the circumstances related to the applications on the matter of the attempted rape of female residents of the
given community by the said servicemen, no hard evidence to that end
has been established. As is clear from the depositions by M. M. I., M. T.
I., I. L. S. and K. M. V.,15 the servicemen simply made offers of sexual
relations to the girls, used foul language, took them by the hand, and
stroked their bodies. They have flatly denied using violence in order to
have their desires satisfied.
Notably, members of the federal law enforcement agencies could very well
hope to go unpunished, given not only the inaction on the part of prosecutors, but also the leniency of the courts. According to the Prosecutor General’s Office,16 over the years of the “second Chechen war” there have
been merely two cases of Russian servicemen being prosecuted and convicted on the count of sexual assault and rape, with a probationary sentence passed each time. To emphasize, in the second case, the victim was
not an ethnic Chechen female. Here we are talking about impunity, the
victim’s ethnic affiliation making little difference.
Of course, the relatives of the victims of the ongoing armed conflict have
been suffering particularly badly, especially the ones that “disappeared”
following their detainment by the law enforcers. For example, Zh.
12
For more detail see “Impunity of Criminals Asks for International Tribunal to be Established.” (www.memo.ru, March 6, 2003).
13
Relevant criminal case was merely initiated three months later when “Memorial” experts
had the mother of one of those who “disappeared” accompanied to be received at the local
prosecutor’s office.
14
Response from the Chechen Republic prosecutor’s office; out reference #15/40-1538-02 of
July 17, 2002 to the “Memorial” Human Rights Center request; in reference #58/02 of February 2, 2002.
15
Local residents whose names have been omitted for good reasons.
16
Response, out reference #52-3804-03 of April 25, 2003 signed by S. Fridinsky, Deputy
Prosecutor General of the Russian Federation, to a request (reference #23289-KS of January
17, 2003) dispatched in the name of S. Kovalev, State Duma deputy. The response was placed
on the “Memorial” website (www.memo.ru).
234
Agouyeva (look above),17 mother of a detained person, desperately sought
to approach any and all officials to secure some knowledge of the whereabouts of her son. Though uneducated in legal ways, she walked the path
already covered by thousands of Chechens before her. In the first place,
she tried to “settle the question” through the available brokers that thrive
on commission from the ransom money used in arrangements to release
people being held hostage. Then she duly turned to the local KourChaloy
and Shali districts police headquarters, the Shali district FSB office, the
Chechen prosecutor’s office, and even to the local traffic police office. Each
time she would be indifferently turned away and dispatched to yet another authority. It was only in February 2003 that “Memorial” experts
eventually met with Zh. Agouyeva. On February 17, 2003 she wrote an
application to V. Kravchenko, Chechnya’s head prosecutor, and went right
over to the prosecutor’s office while being accompanied by a “Memorial”
expert. It was only then that her application was finally filed, which actually came to pass exclusively as a result of the insistence on the part of the
aforementioned expert from the Human Rights Center “Memorial.” Regrettably, in view of the fact that the staff from the Chechen prosecutor’s
office assumed a rather irresponsible attitude, the precious time needed to
find and rescue the man, just as is needed to search out other kidnapped
people and punish the culprits, was lost.
Obviously, in the conditions of the continued armed conflict numerous hazards for women, just as for all other social groups that do not bear arms,
emanate from either warring side. Women perish in terrorist acts mounted
in busy, populated places. Now and again, women are targeted for a purpose. By way of example, November 27, 2000, saw the killing of L. Netsvetova, personnel inspector from the Grozny State University. Allegedly, it
was a revenge killing: Netsvetova was said to be in the way of some members of the Russian special services seeking to remove personnel archives
from the University.
This kind of killing is rather difficult to single out from its generally appalling criminal background. For example, on June 28, 2002, four women
were killed in Chechnya. In the local Grozny-based marketplace an unidentified armed man shot the 23-year-old M. Makhmayeva to death. In the
Zavodskoy district, Grozny, the dead body of a young woman was uncovered, with numerous signs of a violent death being only too evident. At
Naourskaya, some unidentified armed men shot two women to death —
the 23-year-old A. Batasheva and the 30-year-old T. Khadzhiyeva. The
two women apparently fell victim on account of their being too vulnerable.
Admittedly, non-Chechens have likewise been confronting the same risks.
Separately, a word should be said of the women whose behavior patterns
come to be at odds with those established in the local Chechen community.
Several women are known to have been killed because they had started
their own catering businesses frequented by Russian servicemen and where
one could buy strong drinks.18 In the conditions of total de-modernization and
prevailing trends of “neo-archaic revival,” on the one hand, and religious
extremism, on the other, all those killings could be safely passed as the ultimate form of intolerance.
17
For more detail see “Impunity of Criminals Asks for International Tribunal to be Established.” (www.memo.ru, March 6, 2003).
18
These women likewise are reported to have been unconstrained in their ways.
235
According to the data held by the “Chronicles of Violence” released by the
“Memorial” Human Rights Center, in 2002 women killed in the Chechen Republic accounted for 10% of all civilians killed in that territory.19 The
“Chronicles of Violence” (a by-far incomplete account) reports 60 women
killed in one year of the ongoing armed conflict, the gruesome total apparently being more than twice as large.20 This number comes to be dramatically higher than the averaged comparable nationwide indicator, especially
given that Chechnya’s population currently stands at about 600 000 people.21
Meantime, one should not deny the fact that local Chechen women have
been increasingly involved in the conflict. Some of their names have become highly visible because of their participation in terrorist acts. One of
the first of such cases involved a female homicide-bomber that killed the
Urus-Martan district military commandant, Gadzhiyev, in November 2001.
What is more, as many as 18 of the 32 terrorists that seized the Dubrovka
theater in Moscow on October 23, 2002, took the audience hostage, and
that were eventually killed during the rescue operation on October 26,
2002, were women.
* * *
Understandably, human rights violations in Chechnya have been linked not
only with the ongoing military operations there, but also — indirectly —
with the overall social and economic hardships.
Over the past decade the local social and economic infrastructure has nearly
been totally disrupted, which cannot but tell of the status of women in the
republic. Most of the men have no jobs, and they have been devoid of the
right to move about freely and take steps to get themselves either socially,
economically, or otherwise involved in some useful and profitable pursuits.
As a consequence, women have to bear prohibitive moral and physical burdens. A local woman with a family normally has to take care of her loved
ones unassisted. Then, it is generally women that perform all hard-labor and
low-paying jobs. No other sources of legal income are currently available in
Chechnya. Even such unenviable jobs are not enough in the ruined republic, and families survive on humanitarian aid handouts, benefits, or pensions.
Government social security services gather no information on the particularly needy and disadvantaged families. Oftentimes, while being unable to
surmount the bureaucratic hurdle, Chechens find themselves without any
social security and way below the poverty line. Contrary to the local
19
The year’s death toll for the republic stands at 720, the number breaks down as follows:
Ichkeria’s militants — 52; Chechen militiamen — 109, civilian residents — 559 (males — 436
and females — 60, with those younger than 18 years of age — 31). Apparently, the numbers
fail to jibe, because the age of 32 of the dead bodies could not be verified. One can be quite
certain that 372 people (two thirds of all lethal cases) had been killed by members of the federal coercive structures deployed in Chechnya.
20
This appears to be analogous to a situation when under the Ministry of Internal Affairs
statistics released in the spring of 2003 the year 2002 saw 1 132 civilians (men and women)
killed, which evidently comes to be at odds with 559 lethal cases amongst non-combatants,
according to the “Memorial” statistics carried by the “Chronicles of Violence.”
21
For more details about the October 2002 census results (1 088 thousand residents in the
Chechen Republic) see “Results of Chechen Census: Demographic Miracle — Political Mirage
or Financial Fraud?” available on the “Memorial” website. To know more about the Chechen
demographics over the past decade see A. Cherkasov “Book of Numbers: Demographics,
Population Drops and Migrant Flows in Armed Conflict Zone in Chechen Republic;” “Chechnya Three Years Later: the Dead and the Living” available on the “Memorial” website
(www.memo.ru).
236
Wainakh and Muslim traditions, Chechen women, that have physical injuries
or psychological disabilities from military operations, or have lost their husbands and have to raise their families without a provider, often find themselves left to their own devices.
The educational system has nearly been wiped out. Teenage girls are unable to receive a full-fledged higher education, with the assorted talents of
young women thereby remaining untapped and unrealized.
In closing, it should be pointed out that proper knowledge about the plight
of women in the zone of the armed conflict in Chechnya is yet to be built
up, generalized, categorized, and processed, which appears to be rather a
pressing and challenging task.22
22
In 2003 such a project is run by the “Zhenskoye Dostoinstvo” public charity organization.
LIST OF MONITORING PARTICIPANTS
City
Barnaul
Irkutsk
Izhevsk
Kaliningrad
Krasnodar
Kurgan
Moscow
Murmansk
Naberezhnye Chelny
Nizhni Tagil
Novocherkassk
Novosibirsk
Penza
Petrozavodsk
Pskov
Saratov
Syktyvkar
Smolensk
Stavropol
Tula
Voronezh
238
Organization
Altay Territory Women’s Public
Organization “Nadezhda (Hope)”
Regional Public Organization, Baikal
Regional Women’s Union “Angara”
Noncommercial Partner Organization, League of Working Women
“Harmony”
ROO League of Voters of the Kaliningrad region
Krasnodar Territory Public Organization “Protection of Taxpayers’
Rights Society”
Women’s Public Organization of the
Kurgan Region “School of Female
Leadership”
“Center for the Study of Modern
Politics” Fund
Kolsk Association of Women Lawyers
Women’s Public Organization
“Femina”
Public Union “Lana” helping survivors of sexual and domestic violence
Regional Public Organization,
“Women of Don” Union
City Public Organization for the
Protection of Women’s and Children’s Rights “Assol”
Penza Regional Public Movement
“Female Initiative”
Karelia Regional Public Organization “Maiya”
Public Union “Independent Social
Center for Women of the Pskov
Region”
Saratov Region Public Organization,
“Initiative” Women’s League
Republican Public-Political
Women’s Union “Women’s Chamber”
Smolensk Region Public Organization “Center of Social Support for
Women”
Stavropol Regional Public Organization, Gender Human Rights Protection Mission “Parity”
Public Organization, Tula Regional
Support Center for Women and
Children “Friend”
Interregional Human Rights Protection Group
Coordinator
Galina Goncharenko
Svetlana Uralova
Ludmila Chebrova
Irina Gertsik
Ludmilla Maksimenko
Marina Postovalova
Valentina Sherstobitova
Irina Paikacheva
Elena Mashkova
Nina Vinogradova
Ludmila Shepelenko
Irina Muravieva
Marina Apanasenko
Elena Merzova
Natalia Vasilieva
Tatyana Kataeva
Marina Vavilina
Svetlana Egorova
Yulia Lyalikova
Tamara Lopatina
Anna Shvedova
THEMATIC ESSAYS
THE STATUS OF CHILDREN
N. Kravchuk
Statistics
In early 2002, the number of children under the age of 18 in the Russian
Federation was 31.6 million. Over the period from 1999 to 2001, the number of children in the country decreased by 2.3 million. The percentage of
children the overall population dropped from 23.3% at the beginning of
2000 to 22% at the beginning of 2001.1 The 2002 State Report on the Status
of Children in the Russian Federation indicates that the demographic
trends that are currently in place in Russia have a significant, negative
effect on children: the infant mortality rate is high, the birth rate is low,
and the divorce rate is growing, as is the number of children born outside
of marriage. The number of children deprived of parental support keeps
growing. For example, in 1999, 113.9 thousand such children were identified; in 2000 — 123.2 thousand; and in 2001 — 128.1 thousand (4% more
than in the preceding year). The total number of orphans and children living without parental support amounted to 685.1 thousand individuals in
2001.2
56.4 thousand children were taken away from parents judged to be unfit in
2001. This is 6.2% more than in 2000 and 21.1% more than in 1999.3
Current Mechanism for Protection of Children’s Rights
Although the legal status of minors in Russia and the agencies authorized
by the state to protect them has become even more tightly regulated over
the past several years, children have not seen any improvement in their
ability to exercise their rights.
The fundamental right of the child provided for by both international4 and
domestic (RF Constitution, Article 45) laws is the right to be protected.
This right, as well as all the other rights provided for by the RF Constitution, is inalienable and is granted to everyone from the moment of birth
(Article 17, RF Constitution). The state must not only maintain a system of
protection of rights and freedoms, by establishing both organizational bodies and effective, concrete procedures to ensure that responsibilities to
children are met.5
1
2
3
4
5
State Report “On the Status of Children in the Russian Federation” (Ìoscow, 2002 pp 4—5).
State Report “On the Status of Children in the Russian Federation” (Ìoscow, 2002. p. 42).
Ibid.
Article 3 of the UN Convention on the Rights of the Child.
Constitution of the Russian Federation. Comments (Ìoscow: “Yurist,” 1997, p. 100).
241
In addition to the Constitution, the right of the minor to protection is also
accounted for by Article 56 of the RF Family Code (it is worth mentioning
that the old RSFSR Family and Marriage Code did not account for such a
right). Beside the general provision of the child’s right to protection of his
or her interests, the article also protects children from abuse by his or her
parents (or guardians) and legal means to ensure these rights. Moreover,
the same article obligates officials, organizations and citizens who are
aware of any factors threatening the life or health of the child or of any
violations of the child’s rights and legal interests to report such threats and
violations to child support authorities. Having received this information,
child support authorities must undertake necessary measures to protect
the child.
Although the RF Family Code guarantees the right of the child to independently seek assistance in courts of law upon reaching the age of 14, the
legislation does not provide for a mechanism that enables the child to apply to administrative and judicial authorities. The lack of such a mechanism prevents the minor from exercising and protecting his or her rights
in circumstances when the child has no legal representatives or is in conflict with them.
At one point there was hope that the new RF Civil Procedure Code6 would
address this issue adequately; unfortunately, it did not fulfill its promise.
The order in which the rights of minors are legally protected in Russia has
a number of peculiarities. To begin with, for understandable reasons, children are more or less unable to independently protect their own rights and
interests and are therefore rely on special, state-provided protection. Additionally, for a long time, children had been perceived exclusively as objects, not subjects of rights. This affected both the legislative base determining the legal status of children and the mentality of lay citizens and
officials. For example, despite the fact that Article 57 of the RF Family
Code dictates that the opinion of children over ten years of age be taken
into account in all cases in which it might be helpful, in practice, child
support agencies and courts do not always take children’s opinions into account. They justify their decision to ignore children’s testimony by claiming that children are easily influenced, since they regard children exclusively as objects of rights and duties of parents. By and large, they see this
as a deeply ingrained part of public opinion and social consciousness, and
insist that Russian society is unprepared to recognize the child as a subject
of rights.
The main obstruction to the protection of rights of minors in the court of
law is the fact that although Article 37 of the new RF Civil Procedure
Code obligates the courts to allow children aged 15—18 participate in legal
proceedings, as a rule, the interests of the child are represented in the
court of law by his or her legal representatives (parents, adoptive parents,
guardians, and trustees). The same article also requires a law that would
specify the circumstances under which an underage individual aged 14—18
could have the right to personally protect his or her rights and interests in
court in cases that originate from familial and other legal relationships.
Under such a law, courts have the right to decide whether or not participation of parents, adoptive parents, guardians, or trustees in such cases is
desirable. Thus far, however, such legislation has not been adopted.
6
Enacted on February 1, 2003.
242
Although Article 56 of the RF Family Code provides for the right of the
child to independently seek protection of his or her rights in the court of law
upon reaching the age of 14, no real mechanisms for the implementation of
this right have been put in place thus far because the current civil procedure legislation does not legal status to minors who aim to protect their
rights against their legal guardians, or who have no legal guardians at all.
It is expected that the legal reform that is currently underway will result
in the introduction of the juvenile justice institute. On February 15, 2002,
the RF State Duma passed a law in first reading that introduces juvenile
courts in Russia, i. e., courts for juveniles. Should the introduction of juvenile courts be successful, the terms of pretrial detention of underaged suspects, who today spend as many months and years in pretrial detention
facilities expecting their trials as adult prisoners, can be reduced.7
As far as the protection of children’s rights in the administrative order is
concerned, there is a whole system of state bodies in Russia which are obligated to protect the rights of minors. According to Paragraph 1 of Article
8 of the RF Family Code, children’s rights are protected by child support
authorities operating at the local self-government level. At the same time,
child support authorities virtually represent the state in their activities. In
addition to protecting the rights of children who are in custody of their
parents, these authorities act as the sole protectors of the rights of children
who have no legal guardians; they act on behalf of the state in cases in
which children’s rights have been violated and the child’s legal representative is either absent or does not fulfill his or her obligations.
Article 121 of the RF Family Code obligates child support agencies to protect the most vulnerable children in particular: children who have no parental guardians. They are responsible for identifying such children, keeping records on them, and, depending on the specific circumstances in
which these children lost their parents, to facilitate their adoption or
placement in a foster home. In addition, these agencies must monitor the
conditions in which the adopted and institutionalized children live and are
educated and raised. The Family Code specifically forbids identification
and placement of children who have no parents except by these child support agencies. In establishing this norm, the legislature apparently was
concerned about vesting the authority of registration and placement of
children without parents in one specific arm of government. However, it
was a mistake to apply this prohibition to activities associated with identification of parentless children. Even if such activities must remain the duty
of child support authorities, other agencies must also be able to work on
these issues, as such work can only have a positive effect on the effort.
In addition to child support bodies and their multifaceted activities, other
groups that must play a role in protecting the rights of children are: commissions on the affairs of minors and protection of their rights, lawenforcement agencies, prosecutors, the RF Ombudsman, and the Ombudsmen for children’s rights in the varios Russian regions. So far the Ombudsman on children’s rights has been introduced in 11 regions8. The Ombudsman for children’s rights is responsible for ensuring that the rights,
freedoms, and legal interests of the child are protected by the state. It is
assumed that the Ombudsmen will focus most of their attention on the
7
8
“Juvenile Courts to Appear in Russia.” Prima Information Agency (February 15, 2002).
“The Problems of Street Children in Russia.” Khartia.Ru (January 29, 2002).
243
protection of interests of orphans, children who have been deprived of
parental guardianship, as well as children and adolescents who have found
themselves in difficult situations.9
Currently, the RF State Duma is considering the adoption of Federal Law
“On the Ombudsman for the Rights of the Child in the Russian Federation.” However, given that the State Duma has so far failed to develop and
approve minimal living standards for children that the Ombudsman must
ensure and the fact that authority of the Ombudsman is limited to making
recommendations only, the introduction of this legislation cannot seriously
affect the defense of children’s rights.
The Ombudsman for human rights of the Moscow region, S. Kryzhov,
shares this opinion. He has said that in order to protect children’s rights
effectively, the Ombudsman for children’s rights must be vested with real
executive authority that would allow them to not only give recommendations but also to issue binding orders for executive agencies, in particular,
those that address social security, education, health care, and lawenforcement agencies.10
Changes in the RF Legislation Affecting the Legal Status of Children
In 2002, in addition to federal legislation that was adopted in Russia under
the current legal reform program (especially the RF Labor Code, the RF
Administrative Code, the RF Criminal Procedure Code, the RF Civil Procedure Code, and Federal Law “On the Staying of Foreign Citizens and
Stateless Persons on the Territory of the Russian Federation”), there were
numerous relevant bylaws and internal directives adopted, the analysis of
which indicates that no real and systematic steps have been taken by the
state in its attempt to take care of minors.
Some of the laws adopted in 2002 appear to attempt to compensate for the
shortfalls of the state budget, others have a declarative nature, and the
rest undertake to regulate issues that are insignificant in the present situation. These include for example, such documents as Order of the RF President #291-rp of June 17, 2002, to pay 78.2 million rubles from the Presidential Reserve Fund to special institutions for minors who require social
rehabilitation, the decision of the Board of the RF Health Ministry of September 6, 2002, to improve the protection of health of adolescent children,
and finally the letter of the RF Ministry of Education #01-50-841/32-05 of
June 27, 2002, providing brief information about the role and place of cadet schools and cadet boarding schools in the contemporary education system as well as recommendations on how to start up such schools.
Federal Law #63 adopted on May 31, 2002, “On the Bar and Work of Advocates in the Russian Federation,” that accounts for the free provision of
legal assistance to only one narrow category of children — those in institutions of the juvenile delinquency prevention system — is another example
of how children’s rights continue to be ignored in newly adopted legislation. Children do not have opportunities to receive legal assistance free of
charge. Thus, instead of undertaking measures to correct the present situation in which basic rights of children are violated, including the right to
9
O. Fedorchenko, “Street Children Have an Accomplice Now.” Khartia.Ru, February 6, 2002.
A.Levandiy, “Children Are More Difficult to Protect than Adults.” Yezhednevniye Novosti.
Podmoskoviye (June 29, 2002).
10
244
have a family, the right to education, and the right to be protected, the
state passes many laws that do not affect the situation at all.
Violations of Children’s Rights
Among the rights of children that have been most frequently violated over
the past several years are the right to education, the right to be raised in a
family, and the right to be protected from domestic violence. All these issues are closely connected with the right of the child for protection that is
also consistently violated.
In spite of the fact that there is a system of bodies specifically designed to
protect the rights of minors, it is these very bodies that are more and more
often reported as violators children’s rights. In some cases, officials deliberately do not fulfill their duties, while in other cases they unintentionally
fail. The following case can serve as an example of violation of child’s
rights by state authorities:
M. Grigoriyev was expelled from school #175 in Moscow. During the seven
years that he did not attend school not a single representative of the local
social security authority paid attention to the fact that the right of this
child to education was being violated. The physician in the local hospital
who discovered that her patient could not read, write, and count did not
report this to the local child support authories. Grigoriyev’s sister was expelled from grade six (school #128 offering advanced training in foreign
languages) and her right to education was also violated.11
Although the necessity of penalizing the school administration and the
hospital’s pediatrician is questionable, their non-action in essence constitutes a violation of children’s rights and, in particular, violates provisions
of Article 56 of the RF Family Code, which states that anyone who discovers a violation of children’s rights must report it to the child support
agency with jurisdiction in the particular child’s place of residence. Unfortunately, the law does not provide for a liability for non-reporting of such
information, and, as a result, officials ignore it.
According to the Russian Education Academy, 60% of Russian children
(more than ten million individuals across Russia) who finish elementary
school can barely read. Prosecutor-initiated investigations that were conducted in various Russian regions in the mid-90s revealed that schools had
invented a great number of sophisticated and seemingly legal techniques to
get rid of children who are lagging behind in their studies. Upon completion of a few years of schooling, these Russian citizens have almost no
chances to continue their education.12
The 2002 State Report “On the Status of Children in the Russian Federation” points to the fact that the right of children to education is violated as
early as in pre-school. Violations at this stage are primarily associated with
psychological testing of kindergarten graduates. When screening children
for admission to first grade, schools require potential pupils to possess outstanding abilities in one field or another; they admit first-graders on the
basis of test results, a violation of the order of open admission to first
11
N. Bershadskaya, “Little Boy Cries: “I Will Not Go Back Home!” Parlamentskaya Gazeta
(January 22, 2002).
12
S. Kirillova, “An Illiterate Man from Tverskaya Street.” Moskovskiye Novosti (January 22,
2002).
245
grades of general education schools. Schools tend to get rid of the so called
“difficult” children and adolescents by screening them out. Surveys among
children who left school in grades five—nine indicate that approximately
40% of them associate their departure from school with conflicts with
teachers, and an equal percentage amount of children were of the opinion
that they had been ousted from school.13
It is not uncommon for children who have completed grade nine (incomplete secondary education) to be unjustifiably denied the right to continue
their education in grades ten—eleven. On no legal grounds whatsoever,
general schools organize tenth grade around advanced study programs in
one or a group of subjects, thus depriving students the opportunity to continue their traditional, general program of education.14.
Some of Russia’s most vulnerable children are those with no legal guardians, who are instead in the custody of the state.15 These children are not
protected because they have no opportunity to address mistreatment. Here
are several examples of abuse of children who are in custody of the state.
The Principal of Saratov boarding school #3, G. Shumilina, forbade feeding
students who misbehaved (for example, those who missed classes). The
Principal would personally conclude whether or not her order was carried
out. The case was taken to court but the court did not deem it possible to
apply provisions of the RF Criminal Code to the Principal’s actions.
In the same boarding school a student who had missed a class was flogged
and forced to spend a night outside.16
There was a cell in the boarding school in the town of Pagzha (Komi Republic). The cell was two meters by one meter in size with a concrete floor
and it used to be a toilet. Instead of a door there was an iron grid. At
night, a mattress and a thin blanket would be squeezed through its bars.
When the school was to be inspected by a commission of the Ministry of
Education the Komi Republic, the iron grid was removed and the cell was
supplied with electric lights. The commission, however, considered the
complaints of that some of the boarding school instructors had submitted
to the Ministry part of an internal conflict, while it did point out some insignificant violations of the pedagogical process.
Several students of this school undertook suicide attempts. Student G. Ustinova tried to hang herself. The girl was taken out of the loop before it was
too late, but she was severely and permanently injured. One year prior to
that, L. Bezmaternykh jumped out of the window. Soon after that, another
girl decided to follow suit — her friends were able to just grab her hands.
One week later, though, she cut her veins open. A total of approximately ten
students attempted to commit suicide. One of them, V. Khuseinov, having
spent some time in the aforementioned cell, attempted to throw himself under a moving car. He later said he wanted to die in the hope that the administration of the boarding school would be punished for his death.
13
State Report “On the Status of Children in the Russian Federation” (Ìoscow: 2002 p. 22).
Ibid.
15
Paragraph 1 of Article 20 of the UN Convention on the Rights of the Child provides that a
child temporarily or permanently deprived of his or her family environment, or in whose own
best interests cannot be allowed to remain in that environment, shall be entitled to special
protection and assistance provided by the state.
16
A. Subbotin, “Upbringing by Hunger.” Trud (July 18, 2000).
14
246
When several instructors of the boarding school had finally managed to
initiate criminal proceedings against the Principal, they began to experience pressure from the administration to withdraw their testimony. The
specific forms of pressure included reprimands, salary cuts, and threats
over the telephone.
Almost right after a video was publicized which showed one of the students
demonstrating how he had been forced into the cell, he and some other children who had also been locked in the cell at some point were coerced to begin treatment with psychotropic substances. One of the children to whom
the drugs were administered developed cramps and severe delirium.17
These cases indicate that cruelty of foster institutions’ staff is one of the
primary reasons for the increasing number of school dropouts.
Today, mass media openly discuss the importance of protecting children
from not only traditionally feared criminal and socially dangerous elements
of society, but also from parents and individuals acting in parental capacities.18 Parents physically and psychologically abuse their children and make
them work.
Brothers Damir (ten years old) and Ravil (nine years old) had to leave
school because their mother forced them to work and earn money to buy
food for her and her other seven children. Despite the fact that the boys
worked as car washers and gave all the money they earned to their
mother, she beat them. As a result, to escape hunger and beatings the boys
ran away from home.19
Four-year old K. Kozlova died at the hands of her own mother in 2002.
Law-enforcement officers found the tied up corpse of the girl in a cesspit
in which her mother dipped her until she died.20
The official data on sexual abuse of children in Russia does not reflect the
magnitude of the problem. According to official reports, over a thousand
children a year suffer from sexual abuse. In reality, it is much more common. The “OZON” organization alone, which serves the Central administrative district of Moscow, receives complaints from 100—150 sexually abused
children annually. The number of these complaints grows every year.21
In addition to physical and psychological abuse of children, another important problem has emerged that has to do with violation of property rights
of children by parents and officials. The most frequent violation in this
sphere is the sale and exchange of residential property by parents who
disregard the interests of their children, as well as some officials’ illegal
confiscation of the property of children in the custody of the state.
The story of Svetlana and Maxim Domozhirov is a typical one. Their family
used to live in a two-room apartment in one of the settlements in the
Krasnodar territory. When their parents died, the children were sent to a
17
V. Ovchinnikov, “I Wanted to Die like that Boy...” Tribuna (April 9, 2002).
Article 18 of the UN Convention on the Rights of the Child provides that parents or legal
guardians have the primary responsibility for the upbringing and development of the child.
19
E. Reshetnik, “Flowers of Life in the Ice-Cold Wind.” Tribuna (February 14, 2002).
20
A book to commemorate the children who have fallen victims of domestic violence is being
made ready for publication in Novgorod.
21
I. Sergeyev, “Heirs of Dzerzhinsky.” Moskovsky Komsomolets (September 20, 2002).
18
247
foster home. Local authorities re-possessed the apartment for temporary
use having issued an official promise in writing that the apartment would
be returned to the children when they are grown up. When the children
claimed their right to the apartment, it was already privatized and sold to
somebody else.22
The 2001 State Report “On the Status of Children in the Russian Federation” provides the following statistics on registered crimes committed by
adults against underage children:23
1999
2000
2001
Newborn children murdered by their mothers
251
231
203
Sexual intercourse or other actions of sexual nature with an individual under 14 years of age
194
160
146
Molestation
884
697
583
Evasion of payment of alimony or evasion of financial support to
parents unfit to work
40 295
41 512
44 111
Involvement of an underaged individual in committing a crime
23 974
20 529
16 570
853
482
418
Sale of underage individuals
28
37
16
Illegal disclosure of adoption information
38
28
26
2 116
2 557
2 973
38
26
46
Organization or keeping of prostitution facilities
118
126
165
Illegal distribution of pornographic materials and paraphernalia
295
361
442
Involvement of an underaged individual in committing antisocietal actions
Failure to fulfill duties associated with the upbringing of an underaged individual
Involvement in prostitution
At the same time, the RF Prosecutor General reported that 96 700 underage individuals were victims of criminal activity in 2001. Almost 4 000 adolescents died at the hands of criminals, and 4 600 were severely injured.24
Thus, the statistics presented by the prosecutors’ offices differ from the
official statistics provided in the State Report.
Domestic violence is one of the primary reasons why children run away
from their homes. According to T. Lysenko, Chairperson of the Committee
on Women, Family, and Demograpic issues of the Tula regional administration, out of the 200 region’s street children 94% claimed they had run
away from home due to their parents’ cruelty; 77% of them said it was
their mothers who were abusive.25
According to statistics provided by mass media, domestic violence exists in
every fourth Russian family. Approximately two million children under the
22
I. Kiryanova. “Kuzmich Comes Down to Hell.” Literaturnaya Gazeta (March 27, 2002).
State Report “On the Status of Children in the Russian Federation.” (Ìoscow: 2002 p. 117).
24
“The Status of Street Children in Russia.” RFE/RL (February 21, 2002).
25
“Implementation of a Program of Assistance to Children Who Have Suffered from Domestic
Violence Has Begun in Tula.” Khartiya.Ru (January 14, 2002).
23
248
age of 14 suffer beatings from their parents. Each year, 50 thousand children leave their homes to escape cruel treatment. And only 25 thousand of
them are sought out by their parents.26 These figures indicate that children
who leave their homes and become runaways are not sought out by their
parents, who are probably glad that the burden disappeared by itself.
The problem of homeless children27 is one of the most pressing problems in
Russia. More than 13 thousand children wander the streets of Moscow
alone, with nowhere to go.28
It should be noted that the exact number of homeless children in the Russian Federation is not known. The figures provided by state officials vary.
For example, V. Ozerov, Chairman of the Federation Council Committee on
Defense and Security, reports that according to various estimates, there
are three to five million homeless children today in Russia.29 The Minister
of Education claims that “there are 100—500 thousand street homeless today in Russia.”30 Independent experts say as many as four million.31
Officials claim that control and registration are the primary methods that
should be employed to stop children from leaving home. For example, the
Ministry of Education experts suggest that the system of registration of
children who go to schools and boarding schools be reinstated and the
“problem of street children be solved with the participation of the Ministry
of Internal Affairs, the Ministry of Labor, and migration authorities.”
The Minister of Labor, A. Pochinok, has promised “to undertake effective
measures to combat the phenomenon of street children — for that purpose
there will be developed a draft federal program, “Children of Russia,” for
2003—2006.” (It should be noted that a whole group of federal programs
“Children of Russia” was in place in 2001—2002, which did not prevent the
number of street children from growing.)
Despite the abundance of social programs the efforts undertaken by Russian authorities to combat the problems causing children go wandering are
poorly coordinated. Apparently, without radical changes in the sphere of
control over neglected children the situation in Russian cities will not improve.32 Moreover, it continues to deteriorate at a disastrous pace. According to V. Matviyenko, former Vice Prime Minister of the RF Government
on social issues, 100 thousand new orphans appear in Russia each year.33
In early 2002 the RF President pointed out the problem of street children
and emphasized the necessity to address it. In response to the presidential
remark, the RF Government undertook a number of measures in that direction. At the beginning of 2002, Prime Minister M. Kasyanov signed a
decree on additional measures to improve the effectiveness of preventive
26
“A Panel Discussion of the Domestic Violence Problem Took Place in Novgorod on March
22.” ASI (March 23, 2002).
27
Transient or street children include individuals deprived of housing and parental care, as
well as individuals who have homes but are deprived of parental care.
28
“Moscow Unable to Help Underaged Vagabonds.” Khartiya.Ru (January 9, 2002).
29
M. Sergeyev, “Combating the Phenomenon of Transient Children.” Strana.Ru (January 14, 2002).
30
Ibid.
31
O. Nesterova, “The Bitterest of Grieves.” Trud (January 16, 2002).
32
M. Sergeyev, “Combating the Phenomenon of Stray Children.” Strana.Ru (January 14, 2002).
33
Ibid.
249
efforts targeted at combating the phenomenon of underage individuals on
the street. The decree does not promise additional funding (the funding of
such activities was accounted for by one of the parts of the “Children of
Russia” program and remained at the initially planned level — approximately 80 million rubles a year) but is focused on mobilizing the already
existing resources. Now it is not only the Ministry of Labor but also the
Ministry of Internal Affairs, the Ministry of Education, and the Health
Care Ministry that are obligated to combat the phenomenon of street children. Additionally, a special Interdepartmental Operative Headquarters led
by Minister of Internal Affairs, B. Gryzlov, was established to coordinate
the activities of federal executive bodies targeting homeless children and
juvenile delinquency. Other ministries are represented by Y. Shevchenko,
Minister of Health Care, V. Filippov, Minister of Education, G. Karelova34,
first Deputy Minister of Labor and Social Policy, and A. Rakhayev, Deputy
Minister of Culture.
Given that the campaign against homeless children is headed by the head
of the Ministry of Internal Affairs, it is apparent that authorities are going
back to Soviet methods of controlling street children: the Ministry of Internal Affairs, which was virtually removed from participation in the fate
of runaway children in 1999, is again responsible now for searching them,
picking them up, determining their identity, and sending them off to
medical institutions.35
At present, the practice of combating the phenomenon of homeless children remains ineffective. For example, the police of the city of Irkutsk is to
regularly conduct operations catching street children and letting them go
right away because there are no shelter facilities to keep them in and the
children do not want to go back to their oftentimes problematic families or
foster homes.36
Surveys among children living on the street indicate that only 13.5% of
them are orphans. (According to another source, 90% of street children are
“social orphans.”37) The primary reasons why children run away from their
homes include constant conflicts within the family, mutual estrangement,
and violence exercised by parents. Approximately one third of the surveyed children confessed that their parents had never paid any attention
to them; 10% of the underaged homeless children have one of the parents
in prison; parents of 32% of them are deprived of parental rights. Approximately one third of the children said that either their mothers or fathers had drinking bouts, while another third reported that their parents
drank almost every day. Note that only 4% of the surveyed street children
had never attended school.38
It should also be noted here that another problem is closely connected with
and partially stems from the problem of homeless children — violation of
34
On April 24, 2003 G. Karelova was appointed Vice Prime Minister of the RF Government
on social issues.
I. Belasheva, “Police to Help Street Children.” Vremya Novostey (March 19, 2002).
36
M. Noskovich, “Street Children Washed Clean Specifically for New Year’s Holidays.” Izvestiya (January 14, 2002).
37
A. Kornya, “Difficult Road to Home.” Vremya MN (January 16, 2002).
38
M. Sergeyev, “Combating the Phenomenon of Stray Children.” Strana.Ru (January 14, 2002).
35
250
the right of children to education.39 The RF Minister of Education, V. Filippov, claims that 1.5—2 million children of school age in Russia do not go to
school due to a variety of reasons. However, Vice Prime Minister V. Matviyenko (referring to data provided by the Ministry of Education) argues
that only 368 thousand children do not go to school; the number of children on the street does not exceed one million, according to the Ministry of
Labor. It is difficult to imagine that the other 600 thousand street children
still go to school still. The difference in the figures provided above indicates that the true scale of the problem is not known even to people who
are responsible for solving it.40
Mass media speak about violations of the right of children to education
exclusively within the context of the problem of street children. Naturally,
it is impossible to assume that children living in railway stations and earning their bread by stealing and begging would continue going to school and
doing their homework. It is worth mentioning, however, that even children
from normal families avoid going to school.
Thus, at present the situation with the observation of the rights of children in Russia remains complicated. State authorities are not only incapable of effectively protecting children’s rights, they often violate these
rights themselves. The gradually developing norms regulating the protection of children’s rights thus far has not affected the situation in any significant manner.
39
The right of the child to education is provided for by Article 28 of the UN Convention on
the Rights of the Child.
40
M. Sergeyev, “Combating the Phenomenon of Stray Children.” Strana.Ru (2002. January 14).
THE STATUS OF NATIONAL MINORITIES
M. Manotskova
In 2002, the situation of national minorities was characterized by the exacerbation of a number of serious problems which they had already suffered
from before. These include the violation of rights of representatives of certain ethnic groups by authorities (ranging from persecution of Chechens
following the terrorist attack in the Dubrovka Theater Center in Moscow,
to overtly xenophobic and discriminatory policy instituted by the authorities of the Krasnodar territory), as well as assaults on representatives of
national minorities by skinheads and other national-extremists1 (including
several anti-Caucasian massacres). At the same time, a number of fundamental problems remain, the major one being the use of the authorization
mechanism for the registration of residence to discriminate, first and foremost, against descendants from the Caucasus, Middle Asia, and against the
Roma. What aggravates the situation is that in a number of regions authorities refuse to acknowledge representatives of certain ethnic groups
(Meskhetian Turks, Kurds, and Armenians) as citizens of the Russian Federation. Some regions have introduced especially strict registration norms
that directly contradict federal legislation. There are no state mechanisms
(including normative acts) which could help combat discrimination, nor is
there any information available about whether or not there is any intention to develop such mechanisms.
The Situation in the Krasnodar Territory
Throughout 2002 the situation in the Krasnodar territory (Kuban) continued to remain difficult for representatives of ethnic minorities. Odious declarations and actions by Governor A. Tkachov, the unstable position of
Meskhetian Turks, and the nationalistic mood of society there render the
territory one of the most problematic regions of Russia.
The policy administered by local authorities focuses on the systematic exertion of increasing pressure against “alien groups,” especially Meskhetian
Turks. In early 2002, the various “usual” difficulties faced in their everyday lives were supplemented with yet another set of hardships — they
were denied access to health care, and their children to day care (MayJune, 2002, Krymsky district), courts increasingly denied them the opportunity to file lawsuits, many of them were fined for working or engaging
in commercial activities without having registration at the place of residence/stay, which they are also denied, as well as for the “appropriation”
of properties that they had purchased ten years earlier. On February 20,
2002, the Territorial Legislative Assembly adopted its Resolution “On Ad1
For more details see section: “Ban on Instigation of War, Discrimination and Violence.”
252
ditional Measures to Offset the Tension in International Relations in Districts of Compact Settlement of Meskhetian Turks temporarily residing in
the Krasnodar territory” which virtually forbade the registration of Meskhetian Turks. Regional legislators regard them exclusively as individuals
who stopped by on their transit from Uzbekistan to Georgia. The Resolution was abolished only with the enactment of a rather strict Federal Law,
“On the Legal Status of Foreign Nationals in the Russian Federation.”2
On March 27, 2002 the Territorial Legislative Assembly adopted the Law
“On Stay and Residence in the Krasnodar Territory” that came into force
in April. The law contained a number of restrictions that directly contradicted the RF Constitution and federal laws. For example, it increased administrative fines for living in the territory without registration. It is interesting that the authors of the law attempted to speculate, in particular,
about the notion of a “borderland” in order to oust Meskhetin Turks and
other national minorities from the most attractive western districts of the
territory. However, Federal Law “On the State Border of the Russian Federation” does not contain any limitations similar to those that were invented in the Krasnodar territory.3 The territorial law did not directly refer to concrete national minorities, but the crux of the matter was already
spelled out by Governor A. Tkachov in his own words in early March: “It
is possible to determine whether a migrant is legal or illegal by his or her
surname, or rather by its ending, to be exact. Surnames ending with “yan,”
“dze,” “shvili,” and “ogly”4 are illegal, as are their bearers, while surnames
ending with “ov,” “in,” and “ikh” — are on the contrary.”5
Deputy head of the administration of the RF President, V. Surkov, visited
the Krasnodar territory in May 2002. Having met in Krasnodar with representatives from local Armenian, Georgian, Meskhetian Turkish, and Jewish
public associations, as well as with Governor Tkachov, Mr. Surkov praised
the activities of the territory’s administration, as well as the Legislative
Assembly aimed at finding solutions to national issues. The primary subject
discussed at these meetings was the problem of illegal migration, and not
the problem of the discrimination of national minorities. “Nothing new was
communicated to us. Mr. Surkov shook hands with us and declared that
our problems were being studied by the President most attentively,” said
U. Dzhalaidov, one of the leaders representing the Meskhetian Turks6.
In June, the region was visited by a delegation of members from the RF
Federation Council headed by A. Kazakov, Chairman of the Committee on
Federation Issues and Regional Politics. Having studied the Krasnodar territory’s migration problem, he concluded that it was “time to correct the
imbalance and disproportion that had recently developed within the na2
Alternative NGO Report“On Observation of the International Convention on Liquidation of
All Forms of Racial Discrimination by the Russian Federation” (“Memorial” Human Rights
Center, 2002).
3
A detailed analysis of the relevant legislation was carried out by experts of the Independent
Council of Legal Expertise, M. Poliakova and Z. Chechotkina.
4
I. e., surnames of Armenians, Georgians, Meskhetin Turks whose last names have Georgian
endings, and Azerbaijani.
5
Quoted from S. Kostenko. “It Is Possible to Identify Illegal Migrants by Their Surnames.”
Gazeta (March 19, 2002).
6
“Deputy Head of the Administration of the RF President Meets Representatives of Ethnic
Minorities of Kuban.” Kolokol.Ru (May 30, 2002).
253
tional composition and structure of the population residing in Kuban.”7
Thus, he virtually reiterated the ideological formula used by the territorial
authorities to justify their discriminatory policy that inter-ethnic tension
allegedly evolves as a consequence of alterations in the ethno-demographic
balance.
The spirit of the resolution adopted by the RF Federation Council on June
10, following its visit to the Krasnodar territory described above, was the
same:
A noticeable ethno-social misbalance has evolved in the Krasnodar territory that may lead to political consequences and is characterized by a
growing quantitative disproportion between the indigenous population of
the territory and migrants, which facilitates the development of conditions for international tension among residents of the territory.
The resolution confirms the status of Meskhetian Turks as individuals who
are in the process of transiting to “Georgia… temporarily residing on the
territory of the Russian Federation.” The resolution encourages the State
Duma to approve a list of territories in which non-citizens may not reside,
and come up with a mechanism for the “temporary removal of certain categories of citizens, foreigners, and stateless persons from districts susceptible
to conflict situations,” etc.8
Thus, the policy of “ousting” the non-indigenous population administered
by territorial authorities, allegedly in order to reduce “inter-ethnic tension,” was supported at the federal level. In the meantime, it is the policy
of regional authorities that accounts for the tension in the Krasnodar territory. Suffice it to say that approximately the same number of Meskhetian
Turks resides in the neighboring Rostov region. As opposed to the Krasnodar territory, Meskhetian Turks in the Rostov region were recognized as
citizens of the Russian Federation a long time ago; they were granted registration, etc. — and no “inter-ethnic tension” caused by their stay in the
territory of the region has been observed.
In June 2002, in the settlement of Kiyevskoye of the Krymsky district,
several families of Meskhetian Turks who had been living in the Krasnodar territory for over a decade, during which time they had been illegally
deprived of the opportunity to work and live normal lives, went on a hunger strike. According to the old version of Federal Law “On the Citizenship
of the Russian Federation,” these families had the right to obtain Russian
citizenship, were to receive Russian passports and an opportunity to go to
school, work, and benefit from social guarantees as provided by the state.
However, regional authorities did not recognize their right to Russian citizenship, and denied them some rights and impeded the exercise of others.
In 2002 these families were denied the right to rent land. The majority of
them do not receive pension and social benefits. Visiting the settlement of
Kiyevskoye the delegation of the RF Federation Council refused to meet
representatives of the Meskhetian Turk community separately. Instead, the
Commission invited them to take part in a common meeting, in which the
majority of participants were representatives of the local Cossack community (who are openly hostile towards the Meskhetian Turks). Perhaps this
7
V. Yushkov. “Concerned about Migration.” Parlamentskaya Gazeta (#110—111, 2002).
Resolution of the RF Federation Council #337-SF “On the Migration and International Relations Situation in the Krasnodar Territory” of July 10, 2002.
8
254
was the final drop that caused the refugees’ “cup of patience” to run over,
forcing them to resort to such a measure as a hunger strike.
In December of 2002, leaders of the Meskhetian Turks residing in the
Krymsky district of the Krasnodar territory were invited to have a discussion with V. Ostrozhny, chief of the territorial migration authority. The
official upon whom the fate of approximately 13 thousand Meskhetian
Turks depends suggested that they should fill out migration cards. According to Federal Law “On the Legal Status of Foreign Nationals” that came
into force on October 30, 2002, the migration card is designated for foreign
citizens and stateless persons entering the country. Mr. Ostrozhny promised
that having filled out the cards the Meskhetian Turks would be able to
obtain temporary registration for 90 days. However, agreeing to fill out
migration cards the Meskhetian Turks thus acknowledge themselves as
stateless persons, which can be used as an argument to justify the refusal
to grant them the RF citizenship they had been trying in vain to obtain for
the past 13 years.
As reported by the “Memorial” Human Rights Center, courts in the Krasnodar territory are currently reviewing a great number of lawsuits filed by
Meskhetian Turks demanding they be recognized as Russian citizens. As of
August 2002, Meskhetian Turks had won 26 lawsuits, in the course of which
the courts officially acknowledged that the plaintiffs had resided in Russia
since early 1992. This meant that they had had the right to obtain Russian
citizenship according to provisions of the previous Law “On the Citizenship
of the Russian Federation” (February 1992), in compliance with which any
individual who had been permanently residing on the territory of the country by that time could automatically be recognized as an RF citizen. The
Meskhetian Turks who won such lawsuits demanded that passport and visa
authorities issue new Russian passports to them. When the regional passport
and visa authorities refused to acknowledge their citizenship de facto the
Meskhetian Turks appealed the refusals. The outcome of the proceedings in
these cases is still unclear, but the territorial authorities are seriously afraid
of losing the cases. It is possible that the actions of the chief of the territorial
migration services were based on these fears as well. Nonetheless, the challenging proposal of the migration authority, regardless of whether or not the
Meskhetian Turks will accept it, puts them in a complicated position. A refusal to fill out the migration cards will allow authorities to instigate another
campaign against this ethnic group in the mass media.9
The status of Chechens
The ongoing “counter-terrorist operation” in the Chechen Republic renders
Chechens the most vulnerable ethnic group from the standpoint of the violation of human rights. This section will consider the status of Chechens
residing in the rest of the territory of the Russian Federation. Indicative
characteristics of the present situation are the consequences of the hostage
situation that occurred in the Dubrovka Theater Center on October 23,
2002, when the law-enforcement agencies, and authorities in general, virtually applied the principle of collective responsibility.10
9
“Migration Cards for Russian Citizens.” Obschestvo.Ru (December 18, 2002).
Such practice had already taken place after explosions of apartment buildings in Moscow in
August — September, 1999. For more details see: Human Rights in Russian Regions. (Ìoscow:
Moscow Helsinki Group, 2002).
10
255
The moment it became known that a group of Chechen terrorists had
taken hostages, the position of the Chechen diaspora in Moscow, including
those who lived in the capital without registration and those who had a
permanent registration, became dramatically complicated. The police tightened up their control measures, the nature of which humiliated civil and
national dignity enough even before the terrorist act. In addition, nationalistic moods within society were noticeably maturing.
During the first hours following the hostage crisis, operation “Thunderstorm” was announced, by which all law-enforcement structures were to
operate in an enhanced security regime. Despite the numerous declarations
by various representatives of authorities on the inadmissibility of persecution of Chechen Muscovites, in practice precinct police officers ran numerous checks and interrogations of Chechens living in their respective precincts. The nature of these checks was clearly discriminative with respect
to the Chechens, since their nationality served as the only grounds for interrogations. In the course of the checks a number of various violations
and abuses of authority took place. For example, some of the Chechens
were brought to police stations and had their fingerprints taken, while
others were threatened to be ousted from their apartments in cases where
they had no registration. In addition, cases were registered similar to those
that occurred after the explosion of apartment buildings in Moscow in
1999, when false criminal proceedings were initiated following the “discovery” of illegal drugs and weapons in Chechens’ apartments that the police
would secretly plant there themselves. In addition, complaints were received from Chechen children who were insulted in school and forbidden
to continue their education until they were officially registered in Moscow.
The Civic Assistance Committee monitored applications submitted by Chechens in which they complained about illegal actions against them. Below
are several typical examples.11
The Education Committee of Moscow used the events at the Dubrovka Theater Center to return to the illegal practice of denying children without
registration admission to schools.
On October 25, Isita came back from school in tears and said she would
never go back to that school again. She said that her teacher had addressed the class saying the following, “Children, Isita is Chechen, you
must know that.” A representative of the Civic Assistance Committee telephoned the school and asked the principal to sort out this incident, and do
everything to enable Isita to attend that school again. The principal denied
the possibility of such behavior on the part of the teacher, but promised
that everything would be all right.
On October 26, a family of Chechens-Muscovites petitioned to the Civic
Assistance Committee with a complaint. At 6 p.m. a precinct police officer
of the Maryino police department called in and demanded that the husband and wife should follow him. The woman refused to leave the children, and her husband went to the police station having taken his and her
passports. One hour later, she received a telephone call and was ordered to
show up at the station. They returned home at ten p.m. At the police station they had their fingerprints taken, their photographs taken en face and
in profile, and had their height, weight, and special features recorded.
They were asked where they were and what they were doing during the
11
For more information, see the website of the Civic Assistance Committee at www.refugee.ru.
256
time the Dubrovka Theater Center events were taking place, and whether
they had any witnesses to prove their testimony. To the question on what
grounds they were being interrogated the investigator replied, “Why, don’t
you watch television? What other grounds do you need?” The investigator
kept saying that they had killed 90 people. She asked the same questions
several times, the impression was that she was drunk. First, the police
wanted to take away their passports, but later the documents were returned to them. All the other police officers, including the chief and the
one on duty, conversed politely.
The same evening, the Civic Assistance Committee received a telephone
call from a Chechen Muscovite. Her 23 year old son had been ordered to
show up in the same police department in Maryino. She accompanied him,
and although she was not let into the interrogation room she overheard
the conversation through the door. The woman-investigator cursed and
insulted her son. Other police officers did the same, yelling that they
would plant narcotics in his apartment and have him convicted.
On October 30, at one o’clock in the morning, without asking permission
and without presenting himself or his identification, a precinct police officer of the Golovinsky district police department broke into an apartment
in which a family of Chechens lived. The officer acted inappropriately,
spoke rudely, and kept saying, “You are bandits, terrorists.” Having ascertained that all members of the family were registered in Moscow and the
Moscow region he declared that it meant nothing, and since they were not
registered at that particular address he was giving them time until Monday to vacate the apartment, and should they fail to do so he would call a
squad and have them evicted. In response to all their attempts to object,
he would say that no complaints would be heard out, that he would be the
only one to be listened to because he was a police officer. He yelled that he
had fought in Afghanistan and went to Chechnya four times to kill men
and women for money (his exact words), that he would have the elder son
convicted, that he knew how to do that, and that he had already had two
Chechens convicted, but they were released, etc. Then, he took the husband to the police station where he repeated all the insults and threats.
Lack of housing forced one Chechen family (consisting of nine persons, of
whom three were small children and one was a bedridden invalid) to undertake a desperate step. They moved without permission into an empty
apartment that had suffered from a fire, had it repaired, and lived in it for
a number of years. The building had been removed from the residential
fund and was subject to reconstruction that is constantly delayed. Almost
all apartments in this building are occupied by such residents, among
whom there are two more Chechen families. On October 30, in the evening, they were visited by representatives of the Krasnoselsky district police department and the local department of housing exploitation (including
a laborer with a welding device) who demanded they vacate the building.
They did not have a prosecutor-authorized sanction for the eviction. To the
question on what grounds the eviction was taking place a police officer
replied with another question, “Why, don’t you watch television?” The
family refused to vacate their apartment, and the eviction was postponed
until November 1. Given that it was only the three Chechen families, and
not all the illegal tenants in the building, that they planned to evict on October 30, it was clearly an anti-Chechen action.
257
Outrageous violations of human rights and the atmosphere of xenophobia
were accompanied by a broad anti-Chechen campaign in the mass media,
which was supported not only by marginal extremist publications and “yellow” press, but also by newspapers that claim to be respectable and objective. The Izvestiya newspaper can serve as an example, as it published
materials containing hate speech with respect to this particular ethnic
group:
As applied to the Chechens, the statistics of murders, kidnapping, and
terrorist acts do exist and they are dispiriting, which must be treated as
a warning sign. The per-capita share of such activities is incomparably
higher among Chechens than among any other people of the former
USSR,12
Also:
Even during the Soviet years, let alone the present time, slavery and
slave trade thrived in Chechnya. Secretly from Moscow. But in every village people knew who had slaves, where they were, and when they were
taken prisoner or purchased. Therefore, one cannot help raising the issue
of group solidarity, of collective responsibility. The complacency of those
people who seeing the slave trade industry towards their fellow tribesmen
indicates that their national “common sense,” their culture, acknowledges
the possibility of slavery, and accepts hostage taking either by deceit or
violence. And it does not make sense here to say that this is what only
certain bastards do. No, these slave holders act as representative carriers
of their national culture.13
The Status of Roma
In 2002, the status of Roma in Russia did not change for the better either.
On par with the ever increasing frequency of attacks undertaken by skinheads against the Roma, and the law-enforcement agency representatives’
arbitrariness that that have already become routine, are the special operations undertaken by law-enforcement agencies in 2002, the framework of
which equates certain types of offences with a particular ethnic group —
Roma.
In March, and later in July—August 2002, two police operations were conducted that were broadly covered in the mass media. Indicative are the
names of these operations (“Tabor” and “Tabor-2”), as they directly refer
to the specific term denoting a traditionally big Roma family or clan.14
Police officers were eager to be interviewed by journalists, and they
openly talked about the “Tabor” operations, explaining that they were
aimed against migrating groups of Roma, that the round-ups would be
conducted in railway stations and wherever these individuals would get
together, and that each and every one of them will have to have their fingerprints taken. Moreover, police representatives declared that the measures would also be directed against those who provide shelter and support
to the Roma.
12
M. Sokolov, “Criminality and Nationality.” Izvestiya (October 31, 2002).
A. Kurayev, “How to Fight Terrorism without Special Designation Troops.” Izvestiya (November 13, 2002).
14
S. Kulayeva, “Problems of Roma Refugees. Antifascist Motive.” (#3, 2002).
13
258
In some regions, cases of forced eviction of Roma were registered. 315
Uzbek Roma were deported from Surgut in July, and 42 Tajik Roma were
removed from Cherkessk in November.15
Administrative arbitrariness in the policy of Russian authorities is combined with the desire to demonstrate respect for all ethnic groups residing
in the country. For example, in October 2002 the Moscow City Duma approved the establishment of a monument dedicated to Roma who died in
the Great Patriotic War.16
The court trial of seven skinheads guilty of murdering two Roma, completed on December 11, 2002, is important from the viewpoint of the protection of Roma and other representatives of ethnic minorities from violence based on racial hatred. In August 2001, these individuals attacked a
tribe of migrating Roma in Volgograd, and beat two tribesmen to death.
Investigation of this case lasted almost a year. As a result, the judge of the
Volgograd regional court, F. Salikov, found the defendants guilty of murder (article 105.2 of the RF Criminal Code) and hooliganism (article 213.2 of
the RF Criminal Code), and sentenced them to terms ranging from seven
to nine years in an enhanced security prison.17 This case is a rare example,
as it was also acknowledged that the murder had been committed on the
basis of racial hatred.18
However, the majority of cases that have to do with violence based on racial hatred never reach the court. Most frequently such cases are closed at
an early stage (refusal to initiate criminal proceedings). And in cases when
the attackers were representatives of law-enforcement agencies, the latter
sometimes go as far as to directly threaten and blackmail the victims and
their attorneys.19
The status of Roma in contemporary Russia is a certain indication of the
poor ethnic tolerance level of society and the state.
All-Russian Census
The subject of the ethnic diversity was dramatically actualized by the Russian census.
On the whole, the state regards ethnic diversity as a positive factor. Legislation allows and local authorities encourage, the establishment of nationalcultural autonomies. Nevertheless, often the ethnic self-identification of
citizens is out of tune with the goals of certain political power groups. For
example, administrations of all national republics in the Russian Federation
are interested in the maximum official percentage of the “title” ethnic
group in the overall population of the region. Frequently, the issue of ethnic self-identification becomes the subject of conflict between activists of
various ethnic groups, and due to various reasons authorities (usually regional, not federal) tend to side with a particular party in these conflicts.
15
“Surgut “Cleaned” from Uzbek Roma.” APN (July 19, 2002); S. Zaitseva, “Tajik Roma Deported from Cherkessk.” Kommersant (#214, 2002).
16
“A Monument to Roma to Appear in Moscow.” NEWSru.com (October 9, 2000).
17
The seventh defendant who did not directly participate in the murder was sentenced to
five years in prison for hooliganism and was released on amnesty.
18
D. Kutepov. “Hunting the Roma.” Vremya Novostei (#231, 2002).
19
As reported by the Civic Assistance Committee.
259
Results of the all- Russian census conducted in October 2002 were meant
to specify the number of individuals belonging to certain peoples, and to
facilitate the improvement of the national policy of Russia. Based on materials developed by the Institute of Ethnology and Anthropology, a list of
800 self-given names of ethnic groups was put together, that was used exclusively for coding census results data. This means that in the course of
the census interview a citizen could identify himself with any (even an apparently invented) ethnic group, but the official statistics would only include these 800 names labeling the rest as “others.” The State Statistics
Committee considers this number of line-items in the list to be quite sufficient and as adequately responding to the interests of small ethnic groups
of Russia.20 Representatives of national minorities, however, do not always
share this viewpoint. Many small groups whose names were not included
on the list of 800 showed concern that during the data processing they
would end up being simply added to larger “neighboring” ethnic groups.
At the same time, representatives of certain larger ethnic groups were
afraid of the direct opposite. In October 2002, the Union of RF Diasporas
held a conference entitled “Russian Census: What National Minorities Expect from It.” The majority of conference participants shared the opinion
of R. Spektor, first Vice President of the Union of Diasporas, who said that
“many nationalities will be broken into ethnic and confessional elements,
and will lose weight as a solid group. Thus, it will be much more difficult
to protect their interests in a dialogue with the power.”21
Such a state of things was most noticeable in Tatarstan, where the desire
of Kryashens to establish themselves as an independent ethnos caused protests from both the authorities of Tatarstan and the Tatar elite, who insisted on acknowledging only the religious peculiarity of the Kryashens22 as
a religious minority, and denied their ethnic uniqueness. The press regularly published reports saying that the attempt of Kryashens (as well as
Mishari and Nogaibaks) to identify themselves outside the confines of the
Tatar nation was nothing else but a “dissection” of the people caused by
pressure from the federal center.
According to the press service of the Kryashen National-Cultural Center,
the Tatar administration undertook special measures to prevent Kryashens
from identifying themselves in the fashion that they considered appropriate
for themselves during the census. These measures included, for example,
threats to cut off gas and electricity in Kryashen villages, and the utilization
of census forms in which the “ethnicity” cell had been filled out in advance.
The primary problem is as follows: if the Kryashens do not report themselves as Tatars chances are they will together constitute the majority in the
republic with Russians, which in the long run may lead to questioning the
status of Tatarstan as a national republic. If, however, the majority of them
report themselves as Tatars, it is possible that their number in Tatarstan
20
“Census Participation Certificate to Temporarily Replace Registration Documents for Illegal
Migrants.” ASI, October 7, 2002.
21
Ibid.
22
The origin of the Kryashens is actively debated until today. Some Tatar researchers claim
that the Kryashens are part of the population of the Tatar Khanate that was baptized by Ivan
the Terrible in XVI century. This however is denied by the Kryashens themselves, as well as
some ethnologists. In 1926, the Kryashens were forced to give up their status of an independent
ethnos which led to annihilation of schools and other educational and cultural institutions of the
Kryashens.
260
could turn out to be smaller than 50 thousand people, and the republic’s
administration would have to address another issue: the Kryashens would
have to be granted the status of a small people, as well as significant legal
rights to finance their cultural and education projects.23
An analogous picture could be seen in other regions of Russia. In North
Osetia the republic’s authorities were afraid that the people of Osetia
would be possibly broken into Kudartsy, Irontsy, and Digortsy. Head of the
Altai Republic, for example, being afraid that the insufficient number of
representatives of the “title nation” may result in the re-integration of the
republic with the Altai territory, promised to report himself as an Altai.24
Local authorities encouraged the population to follow suit, having refused
to acknowledge Chelkantsy, Teleuts, Telengits, and people of other ethnic
bckgrounds residing in the republic as independent ethnic groups.
23
24
“Paper Tatars.” Obschestvo.Ru (October 10, 2002).
G. Kovalskaya, “Arithmetics of National Discomfort.” Ezhenedelny Zhournal (#40, 2002).
BAN ON INSTIGATION OF WAR,
DISCRIMINATION AND VIOLENCE
G. Kozhevnikova
2002 saw a continued rise in the activity of informal neo-Nazi youth
groups (a.k.a. “skinheads”). Race/ethnicity-related street violence grew exponentially in magnitude as it targeted not only international students but
spread to affect workers of diplomatic missions1 and citizens of C.I.S. countries. Attacks became so regular that formal representatives of foreign nations and ethnic groups had to take quite unprecedented steps to ensure
their safety. A meeting was scheduled to address the situation on January
23, 2002, between seven African ambassadors, headed by A. Danioko, the
Ambassador of Mali and Doyen of African diplomats in Moscow, and I.
Ivanov, Russia’s Foreign Minister. However, the meeting never took place
on account of the Minister’s busy schedule. Deputy minister A. Saltanov
suggested that the ambassadors complain to the police2 despite the fact
that previous complaints to the police had yielded virtually no results.
The situation grew particularly stressful when in early April most foreign
diplomatic missions in Moscow received e-mails signed by a certain “Ivan,
President of Russian skinheads.” The e-mail asserted that on Hitler’s
birthday, April 20, skinheads would kill all foreigners they came across.3
On May 18, the Russian Foreign Minister I. Ivanov met with the ambassadors of five nations who represented the entire diplomatic corps accredited
in Russia: the Ambassador of Sweden (head of the delegation) representing
Europe, the Ambassador of the Philippines representing South-Eastern
Asia, the Ambassador of Gabon representing Africa, the Ambassador of
Ecuador representing Latin America, the Ambassador of Cameron representing the British Commonwealth, and the Ambassador of Libya representing the Middle East.4 The ambassadors declared their joint protest
against the wave of racism sweeping across the country. A month earlier,
on April 15, concern about skinhead activity was expressed by the consulates of Azerbaijan, Armenia, Kazakhstan, Kyrghizia, Tajikistan, Uzbekistan, and Georgia in their letter to the consular department of the RF Ministry of Foreign Affairs.
In the meantime, race/ethnicity-based violence still had a very wide geographical spread. In 2002, assault and battery cases in which the victims
1
In 2002, skinheads attacks involved diplomatic workers/family members from Kenya, Angola, Zimbabwe, the U.S., Cameron, Ghana.
2
S. Bazavluk, G. Charodeyev,“The White Terror: African Diplomats Get Beaten Up in Russia.
The Authorities Take No Action.” Izvestia (February 8, 2002).
3
“Foreign Diplomats Scared of Skinheads in Earnest.” Izvestia (April 13, 2002).
4
V. Malyutina, “Shaved Heads the Ambassadors’ Concern.” Gazeta.Ru (May 20, 2002).
262
were non-Slavic in appearance were recorded in St. Petersburg, Rostovon-Don, Volgograd, Kursk, Voronezh, Stavropol, Vladimir, Surgut
(Tyumen region), Saratov, Ivanovo, Tver, Irkutsk, Kostroma, Petropavlovsk-Kamchatsky, Novgorod, etc.5 It is noted that such incidents increasingly involve large groups of attackers (roughly 10) rather than individuals.
The situation only exacerbated by the lack of an effective response from
the executive authorities, first and foremost from the law enforcement
bodies that prefer to turn a blind eye to the ethnic motives behind many
such crimes and classify them instead as hooliganism. Also, in addition to
cases of spontaneous violence, there were organized actions by skinhead
groups on a larger scale than those conducted in 2001.
In March 2002, a skinhead march was staged in St. Petersburg in February
2002. A group of young people numbering about 200 marched along
Prospekt Prosvesheniya, shattering shop windows, advertisement boards,
and beating up passers-by. Police records note that almost all of the ruffians
were dressed according to “skinhead fashion” and over the entire duration
of the march called out threats against “aliens” and urged that “Russia be
cleaned of the blacks.” Notably, the police did not receive a single complaint
from any victim.6 Soon after, in March, an organized rally of skinheads was
held in Moscow. Its scope was such that traffic had to be stopped at Ryazansky Prospekt metro station as the neo-Nazi group was escorted by a police car. The march resulted in several wrecked cars. There also were some
injuries.7 In April, an organized action was carried out in Orenburg where
skinheads held a rally on the occasion of Hitler’s birthday8. In September,
about ten dozen skinhead teenagers staged a pogrom against Armenians in
Slavyansk-on-Kuban of the Krasnodar region.9 In September, several dozen
neo-Nazis held a torch march in St. Petersburg.10
In view of the growing activity of ultra-nationalist radicals, it is not surprising that 2002 also saw spontaneous riots that had a noticeably nationalistic flavor to them.
The largest riot occurred on June 9 in Moscow after the Russian soccer team
lost to Japan at the World Cup 2002. A crowd of rioters surged from
Manezhnaya Square to Tverskaya Street, shattering shop windows, overturning advertisement boards and cars, and battering passers-by. According
to official data, 68 people applied for medical assistance, including 18 law
enforcement officers (of which ten had to be hospitalized), one person was
killed, a number of metro stations were damaged, eight cars were burned
down and 40 damaged (including three police cars), and windows were dam5
“The H-hour Is Postponed.” Obshaya Gazeta (April 25, 2002); “Federation Council to OK the
Law on Extremism while Kursk Is Already Managing Skinheads.” Obshestvo.Ru (July 4,
2002); A. Tarasov, “An Incendiary Mix with a Time Fuse.” Novaya Gazeta (August 1, 2002); A.
Simonova “Official Racism.” Konservator (September 13, 2002); V. Matveyev “Routine
Nationalism.” Vremya Novostei (September 16, 2002); S. Kazovsky “Nationalists the
Government’s Ace?” Noviye Izvestia (October 15, 2002); ”Skinheads Active in Ivanovo.”
Kolokol.Ru (March 27, 2002).
6
R. Ukalov, “The Pogrom on Prospekt Kultury: Following the Riots in Moscow, Skinheads
Roam St. Petersburg.” Nezavisimaya Gazeta (February 18, 2002).
7
S. Bitsoyev, “Skinheads Declare War.” Izvestia (March 26, 2002).
8
V. Napolnov, “The H-hour Is Postponed. Orenburg.” Obshaya Gazet, (April 25, 2002).
9
D. Maltsev, K. Chumakov, T. Pavlovskaya, “Young People Are Having Fun.” Rossiyskaya
Gazeta (September 18, 2002).
10
V. Kostyukovsky, “Trial Marches of St. Pete’s Nazis.” Noviye Izvestia (October 1, 2002).
263
aged at a number of stores, the Moskva Hotel.11 Rioters were particularly
aggressive against Asian-looking passers-by; thus, five Japanese citizens and
Si Chen, Chinese violinist and a participant in the P.I. Tchaikovsky Contest,
were beaten up, and Jonka, a Chinese restaurant, was wrecked. On the evening of the same day, there was an attack against a Korean church in the
Kapotnya district and another against a Vietnamese hostel.12
A month later, on July 7, large-scale anti-Armenian protests were held in
Krasnoarmeysk (Pushkinsky district of the Moscow region). The protests
were triggered by a fight in a local cafe in which a local man received a
knife wound from G. Sayan, 43, a resident of the Ivanovo region. To take
revenge for their friend, about 40 young men staged a pogrom on the next
day in a street inhabited primarily by Armenians. Armed with baseball
bats and chains, they broke into apartments and, shouting “Down with the
blacks!” and beating up all of the non-Slavs they could identify by face
that were in their way. About 20 persons were hospitalized.13
Notably, the local law enforcement authorities and the administration not
only denied the anti-Armenian nature of the incident and its large scale14
but also supported a proposal to set up a city militia, a suggestion voiced at
a rally of local people held on July 9 that was also anti-Armenian.15
Ethnic clashes also occurred in other cities of Russia. Thus, on Border
Guards’ Day, celebrated in May, a group of drunken former servicemen
attempted a pogrom against people from the Caucasus at the central open
market in the city of Vladimir. As a result of a large fistfight, several participants in the pogrom ended up in hospital.16
The situation remains tense in the city of Uglich of the Yaroslavl region
that has a sizable Chechen population. Tension peaked at the end of July
2002, when a Russian youth was killed in a brawl. Following the killing, a
Chechen house was lit on fire and later, a Chechen was shot. In the following days, Uglich Chechens and Russian activists tried to intimidate each
other by running convoys of vehicles through the city’s streets. On July 26,
the unauthorized actions almost culminated in an all-out fight. The two
parties had to be separated by the riot police. One policeman was injured.17
The Caucasus-phobia occasionally transforms into Islamophobia. For instance, an elderly mullah was beaten up in the town of Roshal of the Moscow region in November.18
11
Yu. Shekochikhin, “The Sub-Human Class.” Novaya Gazeta (June 17, 2002). However, there
were different reports in the press. Thus, according to Noviye Izvestia, the pogrom resulted in
200 injured, including 70 hospitalized. The soccer fans’ actions damaged 240 installations in
downtown streets, including 227 shattered windows and shop windows, 45 ad boards. Ye.
Rubtsova “Who Will Be Held Responsible for the Riots?” Noviye Izvestia (June 11, 2002).
12
“Skinheads Attack Korean Church in Moscow.” NTV.Ru (June 10, 2002); “Skinheads Attack
Vietnamese Hostel.” Kolokol.Ru (June 10, 2002).
13
V. Chesnokov, “Secret” Riots in Moscow Region.” Noviye Izvestia (July 9, 2002); V. Demchenko, V. Yemelyanenko, A. Mitrofanov, Ye. Chubarov, “Not So Easy As Cutting Water Melons.” Izvestia (July 9, 2002).
14
See: “Flight Critique: [An Interview with K.V. Kudoyarov, Chief of Krashoarmeysk’s police].” Gorodok (Krasnoarmeysk of the Moscow region, September 2, 2002).
15
M. Polunova, A. Podolsky “Krasnoarmeysk Rises to Fame.” Gorodok (Krasnoarmeysk of the
Moscow region, July 12, 2002).
16
“Nationalist Extremism and the State.” Panorama.Ru (May 28, 2002).
17
“Conflict in Uglich: Citizens vs. Chechens. Correspondent’s Hour.” RFE/ RL (August 3, 2002).
18
“A Mullah Gets Severely Beaten Up by Teens in Moscow Region.” Polit.Ru (November 22, 2002).
264
Representatives of other ethnic groups also fall victim to ethnic xenophobia.
In July, an unauthorized rally demanding that the town administration
expel a nearby Roma camp was held in the Pashino community near Novosibirsk. The rally sounded calls to burn down the camp in the event that
the Roma refused to go away. That rally caused the Roma to leave the
area en masse, despite the fact that they had bought houses there.19 In
September, a routine quarrel led to a mass fight between the Greek community and Cossacks in Yessentuki, Stavropol region, effectively sending
five persons to the hospital.20
Anti-Semitism remains a widely spread form of xenophobia. It was under
anti-Semitic slogans that a new type of terrorism emerged in Russia in
2002 that involves planting bombs under roadside boards carrying nationalistic texts. The first case of this type occurred on May 27, 2002, in the
Moscow region. On the 32nd kilometer of the Kiev Highway, not far from
Vnukovo Airport, a 28-year old muscovite, T. Sapunova, was badly injured
as she attempted to remove a board with an anti-Semitic slogan on it. Following this incident, the prosecutor’s office of the town of Vidnoye, in the
Moscow region, initiated a criminal case under Article 111, Part 2, paragraphs “v” and “e” “causing severe premeditated harm to human health
by a generally dangerous method and motivated by ethnic hostility”21.
However, only a few days later, N. Vaggin, Chief of the Leninsky district
police, told journalists that:
This is a disputable case, whether installation of such a board is a breach
of law. I believe that from a formal standpoint the slogan “Death to
Jews” does not constitute a call fanning inter-ethnic confrontation. They
call anyone you can imagine a Jew in our country.22
Over several months following this incident, nationalistic boards popped up
in various regions of Russia: on June 5, three such boards were installed in
Voronezh; on June 12, a board was installed on the 83rd kilometer of the
Moscow Outer Ring Road (MKAD); on June 17, in Krasnoyarsk; on July 4,
in Vladivostok; on July 8, in a suburb of Tomsk; on July 15, in the Kemerovo region; on July 17, in Gatchina of the Leningrad region; on July
26, in Kaliningrad region; on July 30, in the Moscow region; on July 31, in
Pravdinsk, the Kaliningrad region; on July 28 and September 2, in Moscow; on September 10, in Rostov-on-Don; on October 28, in the Moscow
region. As a result of explosions triggered by attempts to remove the
boards, two road construction workers were injured in Tomsk; one person
was killed and a female passer-by injured in Baltiysk, in the Kaliningrad
region. No one was killed or injured by the blast in Moscow on July 28.
The other boards were fitted with mock bombs only. In a vast majority of
the cases, texts on the boards were anti-Semitic23 and in a number of cases
they were installed in the vicinity of synagogues.
19
“Nationalist Extremism and the State.” Panorama.Ru (July 17, 2002.).
In Yessentuki, “Five Injured in a Mass Fight Between Cossacks and Greeks.” Polit.Ru (September 16, 2002).
21
“Bomb Explodes on Kiev Schosse in Moscow.” NTV.Ru (May 27, 2002).
22
“Russian Jews Demand Police Colonel Dismissed on Anti-Semitism Grounds.” Lenta.Ru
(May 31, 2002).
23
One of the boards was anti-Russian, another simply obscene with no ethnic overtones, and
the third contained anti-Semitic and anti-Caucasian slogans.
20
265
In 2002, there emerged another “novelty” related to anti-Semitism, the
exploitation of ethnic antagonisms in the resolution of business disputes. In
a conflict between several iron mills in Tula, one of the parties appealed to
public opinion stressing the fact that its competitor’s administration was
“not Russian;” that its CEO’s last name is Rabinovich; that the bank supporting the competitor has close ties to Israel, etc. As a result of this campaign, city of Tula soon saw leaflets with such slogans as “Russian workers
must have a Russian administration,” which were quickly followed by
other leaflets containing nationalistic, primarily anti-Caucasus slogans. The
local administration and law enforcement deny that any inter-ethnic hostility has occurred.24
As before, several cases of desecration of and attacks against synagogues
and Jewish cultural centers were recorded in 2002. In March and April,
swastikas and anti-Semitic slogans were painted on synagogues in the cities of Kostroma, Petrozavodsk, and Perm. In April, there was an explosion
near a synagogue in Krasnoyarsk; in May, the door of a Rostov-on-Don
synagogue was set on fire. On October 20, a synagogue was shot at and on
October 27 a grenade launcher was shot at Hased Atikva, a Jewish cultural/charity center in Novosibirsk. In December, a synagogue in Kostroma
was attacked that had also been vandalized in the past.
Nationalistic and neo-Nazi aggression also manifests itself in acts of vandalism targeting memorials and cemeteries. Thus, in April, graves and
tombstones were desecrated at Slavyanskoye cemetery in Krasnodar,25 in
the same month, 39 Tatar tombstones were vandalized in Aleksandrov of
the Vladimir region26; in late May, a Jewish graveyard in Makhachkala was
defiled; in June, more than 140 tombstones of German soldiers’ graves
were destroyed in Krasnogorsk of the Moscow region; in July, several Moslem graves were destroyed at a Moslem cemetery in Volgograd; in December, tombs at several military graveyards in the Novgorod region were
painted over with Nazi swastikas.27 In May, swastikas and anti-Semitic slogans were painted on a memorial to victims of Nazism in the Smolensk
region; in October, the same was done to a memorial to victims of political
repression in St. Petersburg.28
Meanwhile, the policy of the government is not consistent in its response to
racial and ethnic violence or to relevant campaigns in the media. On one
hand, attempts are certainly made to contain the activities of such organizations. These attempts were supposed to be strengthened by the adoption,
in July 2002, of Federal Law “On Countering Extremist Activities29” and
related amendments to effective regulations. However, the haste with
which the law was passed — the first reading by the State Duma and the
signing by the RF President were separated by less than two months (the
first reading by the State Duma was held on June 6, and on July 25 the
24
V. Kochetkov, “An Organization Seeks Nazis. Urgent.” Noviye Izvesti (November 30, 2002).
In most cases (19 out of 21) Armenian graves were affected, one grave was Azeri.
26
A. Trokhin, “Feel the Hostility.” Vremya MN (# 209, 2002).
27
“German Graves Desecrated in Moscow Region’s Krasnogorsk.” Polit.Ru (June 7, 2002);
“Graves Desecrated at Moslem Cemetery in Volgograd.” Polit.Ru, July 10, 2002; “Nationalist
Extremism and the State.” Panorama.Ru (October 25, 2002).
28
In St. Petersburg, vandals desecrate a memorial to victims of political repressions.
NEWSru.Com (October 3, 2002).
29
Passed by the State Duma on June 27, 2002, approved by the Federation Council on July
19, 2002; signed by RF President on July 25, 2002.
25
266
President signed the law into effect) — resulted in numerous flaws in the
language of the law and consequent concerns about the degree to which
the law is appropriate and the many possible ways it can be abused in legal practice.30
The fact that the law was applied as early as October to eliminate the
Omsk regional branch of the RNE (Russian National Unity) party31 (the
case had been initiated on September 4) is an exception to the rule. As was
the case in 2001, legal practices remain selective and inconsistent. In 2002,
a whole series of steps were taken to fight ethnic hostility in the mass media. Along these lines, on July 17, a court ruling shut down a paper known
as Russkiye Vedomosti for publishing materials of “extremist, nationalistic,
and anti-Semitic nature;”32 on August 8, the magazine Russky Khozyain
was closed because it on the grounds of “war propaganda, instigation of
inter-ethnic hostility, and calls for seizing power;” and on September 20,
Limonka, the paper of the Nationalist-Bolshevik party, was closed down.33
The Ministry of the Press issued a number of warnings against instances of
instigation of inter-ethnic hostility; notably, these warnings targeted not
only small-circulation or “marginal” media (such as Nashe Obozreniye of St.
Petersburg, Russkaya Obshina Yekaterinburga, and Russkaya Sibir of Novosibirsk34), but also some quite sizable and respectable media as “Volga,” a
Nizhni Novgorod broadcaster35.
In the first half of 2002, even before the new anti-extremist law was
adopted, the RF Ministry of Justice initiated the liquidation of six regional
branches of the RNE in the Republic of Khakassia, the Khabarovsk and
Krasnodar territories, and the Volgograd, Perm, and Tomsk regions.36. On
July 30, the Khabarovsk territorial court ruled to eliminate the territory’s
RNE branch.37 A criminal case under Article 282 (“Instigation of ethnic,
racial, or religious hostility”) is ongoing against six skinheads in Kursk. The
standard charge of hooliganism was changed to instigation of ethnic hostility over the course of the investigation.38
On the whole, however, courts either choose to ignore the ethnic motivation behind certain crimes or are simply tolerant of it.
30
See: A. Verkhovsky, The Government vs. Radical Nationalism: What to Do and What Not to
Do? Moscow, 2002
31
“Local RNE branch to be liquidated in Omsk.” Lenta.Ru (October 10, 2002).
32
A. Grinyov “One Extremist Paper Less.” SMI.Ru (July 18, 2002)
33
However, the paper was soon registered in Belarus under the title General Guideline. Notably, this title is in fine print, while the Limonka logo is preserved. V. Bogomolova “Bald Apes’
Orgy.” Moskovsky Komsomolets (September 30, 2002).
34
B. Vishnevsky, “The Nelson Principle.” Novaya Gazeta (March 18, 2002); “Ministry of the
Press Shuts Down Extremist Papers.” Strana.Ru, May 28, 2002; “Court Shuts Down Skinhead
Magazine.” Dni.Ru (August 8, 2002).
35
On August 18, the broadcaster aired a material in a rather incorrect tone alleging that
preparations were underway for an en masse movement of Chechen refugees to the Nizhnii
Novgorod Region. On August 27, the Privolzhsky Interregional Department of the RF Ministry of the Press issued a formal warning to the editors. A lengthy litigation in various courts
ensued, as a result, on December 4, the warning was declared void.
36
“Since 2001, the Ministry of Justice Has Issued about 8 000 Warnings of NGO’s Being at
Variance with the Law.” Polit.Ru (October 23, 2002).
37
“One Out From the Ranks of Nationalist Patriots.” Obshestvo.Ru (July 31, 2002).
38
“Federation Council to OK the Law on Extremism while Kursk Is Already Managing Skinheads.” Obshestvo.Ru (July 4, 2002).
267
In January a criminal case was dropped against the Yekaterinburg eparchy that had published the “Protocols of Zion Wizards” in its paper. Notably, 14 deputies of the State Duma stood to defend the eparchy, including
A. Greshnevikov, A. Chuyev, A. Shulga who asserted that the materials
published and distributed by the eparchy “contained no calls to hatred and
discrimination against representatives of a nation.”39 In February, considering a case against Kolokol, a radical nationalist and anti-Semitic paper (editor-in-chief S. Terentyev), the Volgograd city court determined that “materials published in the paper are unrelated to Nazism but justly criticize
such political phenomena as Zionism, masonry, and Judaism.”
On April 4, the Moscow city court issued a guilty verdict in the case
against A. Ivanov-Sukharevsky, head of the People’s National Party and
one of the chief skinhead ideologists, on the charge that he had instigated
ethnic and racial hostility (Article 282 of the RF Criminal Code). He was
sentenced to three years of probation and was immediately amnestied40. In
July, Ya. Kanev got four years of probation under a similar article in Syktyvkar (Komi Republic) for organizing a riot at a Jewish Cultural Center,41
while in Voronezh, Zhigunov was sentenced to two years of probation in
September for replication and mass distribution of nationalistic leaflets in
April of 2002.42
On November 20, a guilty verdict was issued to participants in the pogrom
at the Tsaritsyno market in Moscow (2001); in December, the first convicts
received their sentences for their roles in the June pogrom at Manezhnaya
Square in Moscow. Their sentences contained no reference to the nationalistic aspect of the crimes in spite of the fact that the accused themselves
not only made no attempt to conceal their views, but in fact tried to emphasize them in every way possible.43 They were all convicted for murder
and hooliganism. And as far as the case of the pogrom in the Yasenevo
district of Moscow (April 21, 2001) is concerned, the Moscow city court
opened the case for further investigation.44
Special attention should be paid to the case initiated in Saratov on July 8
against E. Limonov, the leader of the Nationalist Bolshevik Party (NBP), S.
Aksyonov, the founder of the Limonka paper, and other party activists.
They were indicted under Articles 205, 208, and 222 (setting up an illegal
39
“In Defense of the Yekaterinburg Eparchy.” Sobornost (#8, 2002).
A. Fyodorov, “Aimed at Paragraph Five, Hit in the Face.” Tribuna (April 6, 2002).
41
N. Zyuzyev, “The Anti-Semitist in an Outhouse: the Republic Issues Its First Guilty Verdict
in an Ethnic Hostility Instigation Case.” Vyorsty (July 13, 2002).
42
L. Lazarenko, “A Voronezh Student Convicted for Extremism.” Rossiyskaya Gazeta (October
1, 2002).
43
For example, the teenagers detained in Krasnoyarsk on charges of beating up workers from
North Korea declared that the assault was misaimed as they had thought that the workers
were from Kyrghizia. See: “Skinheads Beat Up Koreans Mistaking Them for Kyrghiz.”
Grani.Ru (November 22, 2002). The prisoners detained in Kursk openly declared during the
investigation that they had been guided exclusively by the color of the victims’ skin, with the
final objective of “purging Russia from aliens.” See: “Federation Council to OK the Law on
Extremism while Kursk Is Already Managing Skinheads.” Obshestvo.Ru (July 4, 2002).
44
The verdict of the Moscow city court was issued on March 5. The Prosecutor’s Office protested against the decision, but on May 15, Russia’s Supreme Court upheld the legality of the
Moscow court’s verdict. Later, in July, the verdict was also confirmed by the Presidium of the
RF Supreme Court . See: “Supreme Court Required the Yasenevo Pogrom Case Be ReInvestigated.” Lenta.Ru (May 16, 2002); “Prosecutors Ordered to Complete Investigation of
Yasenevo Pogrom Case.” Lenta.Ru (July 24, 2002); “General Prosecutor’s Protest Turned
Down, Yasenevo Pogrom Case to Be Re-Investigated.” Polit.Ru (July 24, 2002).
40
268
armed group; terrorism; illegal possession of firearms). On top of these, E.
Limonov and S. Aksyonov have been incriminated for forcible seizure of
state power and attempting to change the political system (Article 280 of
the RF Criminal Code). It was found in the course of the court hearings
that V. Linderman, the leader of Latvian Nationalist Bolsheviks, and not
Limonov, had authored one of the texts on which the accusations of attempting to overthrow the existing regime were based.45 The circumstances
of the prisoners’ detention and the evidence against them put in doubt the
position of the prosecution and in fact discredited attempts to isolate activists of radical organizations through the courts.46 The attempt by the authorities to eliminate the NBP further discredits all anti-extremist activities. By the decision of the Moscow Regional Court of January 10, 2002,
the procedure of liquidating the party was suspended on the grounds that
the prosecutors used the materials of the “Limonov case” as evidence. The
Moscow city court accepted the arguments of S. Belyak, the NBP’s attorney, who asserted that a decision must not be made based on materials of
an unfinished criminal case, while the very fact of using such materials
constituted a gross violation of the principle of secret and confidential investigations.47
Meanwhile, the National Bolshevik Party, in spite of the arrest of its
leader, remained fairly active in 2002. Limonov’s people were the most noticeable participants of the “Anti-Capitalism-2002” action held on September 14—15. The event culminated in mass riots and clashes with the police
on Triumfalnaya Square in Moscow, in which 90 persons were detained, all
of whom were NBP members.48 There also were other, smaller-scale actions. In February, the Nizhni Novgorod branch of the NBP assumed responsibility for arson against the local branch of the Union of Right Forces
(SPS).49 In June, NBP activists handcuffed themselves at the opening ceremony of the Riga-Expo exhibition, and in front of the State Duma in July.
On November 5, during the opening ceremony of the Russia-EU Center of
Energy Technologies in Moscow, O. Shalina, a member of the NBP, threw
a lemon cake at F. Lamoure, an EU representative.50 The most prominent in
this group of events was the failed attempt to throw tomatoes at Mr. G.
Robertson, NATO’s Secretary General, during his speech at the NATO
summit in Prague on November 22.51 Nationalist Bolsheviks still continue
their practice of throwing paint bottles at embassy buildings. In 2002, the
Embassy of Estonia suffered from these attacks twice (in May and in No45
N. Andreyeva, “Abel in the Place of Limonov: Who Is the Defendant in Saratov?” Vryemya
MN (November 20, 2002).
46
For details of the detention and the investigation, see V. Likhachyov, Nazism in Russia
(Moscow, 2002, pp. 92—93).
47
M. Sorokina, “Liquidation of Eduard Limonov’s Nationalist Bolshevik Party Suspended.”
Strana.Ru (January 10, 2002).
48
Notably, a number of leftist organizations participated in the action apart from the NBP,
including “Working Russia,” the Union of Communist Youth, the “Advance Guard of Red
Youth (AKM),” the Russian Communist Union of Bolshevik Youth (RKSMb). See: “Mass Riots
in Moscow.” Dni.Ru (September 16, 2002); I. Sukhov, “A Capitalist-Style Response.” Vryemya
Novostei (September 18, 2002).
49
“Nationalist Extremism and the State.” Panorama.Ru (February 18, 2002.).
50
“European Commission Bureaucrat Gets a Cake from Limonka.” Lenta.Ru (November 5,
2002).
51
G. Papernaya, M. Demidenko, “Tomato ‘im! NATO’s SecGen Attacked by Russian Extremists.” Kommersant (November 23, 2002).
269
and in November), while the Danish embassy was targeted in October.52 All
things considered, the NBP was Russia’s most active radical organization in
2002.
The lack of a clear-cut position of the government in relation to these
manifestations of inter-ethnic hostility has served to encourage the emergence of new public organizations that include aggravating ethnic tensions
and provoking ethnic/religious violence and discrimination in their agenda.
Thus, after the pogrom in Krasnoarmeysk (see above), a Movement against
Illegal Migration took shape on July 12. In its Declaration, the organization
calls for opposing “illegal immigrants,” using any means available, including legislative restrictions on marrying them, making legal agreements
with them, etc.53
What caused the most public repercussions, however, was registration by
the RF Ministry of Justice of the National State Party of Russia (the
NDPR), at the founding convention of which openly ultra-nationalist appeals had been made. One of the party’s co-chairmen, B. Mironov, said in
his speech:
It must be stated clearly that the party is being created to achieve one goal,
rising to power… We make no secret of it that it will be a nationalist
party that will move to gain power. Not a party of patriots, but, and I
stress it, a party of nationalists… We are going to prove that the parliamentary way is a false way… Let us squeeze out all that Jewish democratic stuff that they have been stuffing us without us noticing… We have
a common enemy, the Jew, and a common goal, a change of power.54
It was only as a result of the scandal that arose after numerous media
published records of NDPR leaders’ speeches that the Ministry of Justice
announced that it was initiating an audit of the party. Comparing this with
the fact that, as the Ministry of Justice and the Prosecutor General’s Office declared at one of their briefings, their primary focus in 2002 was on
auditing “such a scandalous public movement as the Russian National
Unity”(RNE) (see above),55 it can be inferred that the authorities whose
duties involve countering extremist organizations pay attention to them
only after public opinion makes ignoring them no longer possible.
In the meantime, a significant proportion of statesmen continue either denying or taking no notice of the sometimes violent manifestations ethnic
conflict. Thus, the Moscow prosecutor office has declared that Wahhabism
and not nationalism constitutes the key threat to the state.56 Only a month
before the large-scale action of skinheads on Hitler’s birthday, General V.
Pronin, Chief of the Moscow police, said that skinheads existed in journalists’ imagination, while in fact being, as a rule, soccer fans.57 A few months
later, in June, V. Papsuyev, head of a department within the Main Criminal Investigation Directorate of RF Ministry of Internal Affairs, declared
52
“Limonov’s Followers Attack Estonian Embassy.” Gazeta (May 14, 2002).
“Krasnodar and Krasnoarmeysk, the capitals of nationalism.” Obshestvo.Ru (July 12, 2002).
54
S. Agafonov, “Ministry of Justice Registers Nazis.” Noviye Izvestia (September 26, 2002).
55
Since 2001, the Ministry of Justice has issued about 8 000 warnings about NGO’s being at
variance with the law. Polit.ru ( October 23, 2002).
56
S. Teplov, “Extremism Has Firmly Become Part of Our Lives.” Yezhednevnye Novosti. Podmoskovye (April 2, 2002).
57
M. Stechkin, “The Police Decrees Away Skinheads and Waifs.” Gazeta.Ru (March 21, 2002).
53
270
that not a single crime had been registered in Russia that was targeted
against foreigners on racial or religious grounds.58 The declaration made by
the police chief of the Leninsky district of the Moscow region, N. Vaggin,
in response to the anti-Semitic plank left on Kiev Highway (see above) has
yielded no results whatsoever. And it is but the same N. Vaggin who authored a letter sent to the directorate of an open market in Vidnoye of the
Moscow region that noted that, “according to customers’ complaints, there
are large numbers of foreign nationals (Uzbeks, Tajiks, Azerbaijanis, and
citizens of other C.I.S. countries) illegally working and living at the market
without registration.” Following this letter, an ethnic purge of open markets was staged in September 2002.59
In the spring of 2002, a set of laws aimed at liming migration that had
been adopted by the legislative assembly of the Krasnodar territory attracted significant public attention, as did the comments of the territory’s
Governor, A. Tkachyov. Those laws required that illegal migrants be expelled from the territory and they established an administrative liability
for harboring them. As implementation mechanisms were discussed for
these laws, there were proposals to increase the fine for failure to obtain
registration [as a resident] to 6 000, to set up processing centers to be operated by the territory’s police headquarters that would hold illegal migrants until deportation, and to set up “immigration centers” where incoming people could be kept for approximately ten days while their papers
were being validated.
Commenting on these laws, Governor Tkachyov said, in particular, “Determination of whether an immigrant is legal or illegal can be made by
his or her family name, by the name’s ending, to be exact. Family names
ending with “-yan,” “-dze,” “-shivi,” “-ogly” are illegal, just like their
bearers.”60
In April, the Krasnodar territory’s prosecutor’s office announced that it
intended to contest the regulations adopted by the legislative assembly in
court. However, no action was taken in response to the Governor’s statements. Moreover, there was no major conflict at the Governor’s April 5
meeting with V. Putin on relevant issues to the Krasnodar territory61.
The war in Chechnya remains a major contributor to inter-ethnic tension.
The situation grew particularly tense after the seizure of the Dubrovka
Theatrical Center in Moscow. For the fear of large-scale inter-ethnic conflicts, the Ministry of Internal Affairs even had to establish a telephone
hotline to receive reports on cases of inter-ethnic aggression, hostility, or
pogroms.62 However, the Moscow police department asserted that no antiCaucasian actions had been registered in relation to the Dubrovka hostagetaking. At the same time, the media more than once reported not only
58
“No Crimes Are Committed in Russia Against Aliens on Racial or Religious Grounds.”
Russkaya Liniya (June 21, 2002).
59
K. Kostandi, “Position Swaps on 41st Kilometer.” Vidnoye.Ru (June 3, 2002).
60
Quoted by: I. Bederov, “Illegal Surname.” Novaya Gazeta (July 11, 2002).
61
“Kuban Initiates a Large-Scale Campaign Against Migrants.” Kolokol.Ru, March 21, 2002;
A. Shalayev, “Kuban to Expel Migrants.” SMI.Ru (March 28, 2002); “The Issue of Nationalism
in Russia.” Izvesti (April 19, 2002); A. Bogomolov, “The Kuban Order.” Noviye Izvestia (April
26, 2002); “A Person Has the Right.” RFE/RL (April 25, 2002).
62
“The Ministry of Internal Affairs has opened a hotline to receive reports on ethnic aggression cases.” NEWSru.Com (October 25, 2002).
271
cases of people of Caucasian origin being beaten up in the streets of Moscow,63 indifference to these crimes on the part of the law enforcement
agencies. Mass passport checks were reported, along with ungrounded detentions, forced dactyloscopy64 and open forging of criminal cases on the
grounds of illegal possession of firearms and drugs by ethnic Chechens.65
Notably, such actions were conducted not only in Moscow but also in other
regions of Russia.66 In addition, at the height of the “fight against terrorism,” a mass deportation of illegal immigrants from Tajikistan was staged.
Therefore, in spite of gradual legal improvements in some areas— which
include the bans on calls for war, discrimination, and violence — the
trends noted in our previous reports continue to exist. These include increased activity of neo-Nazi teenage groups, growing overall xenophobia
sweeping across Russian society, discriminatory practices by law enforcement, and overall indifference of the governmental, law enforcement, and
judicial authorities to the racial/ethnic motivations behind many breaches
of the law.
63
“Two Azeris Beaten Up in the Capital.” Newsru.Com, October 29, 2002; “A Man from the
Caucasus Severely Beaten Up Near Petrovskoye-Razumovskoye Underground Station.”
Newsru.Com (October 24, 2002).
64
“Chechens Across Russia Forced to Leave Their Fingerprints with Police.” NEWSru.Com,
October 29, 2002.
65
See: S. Gannushkina, “October 24 — December 4. Monitoring of Persecution of Chechens
and other Persons of Caucasian Origin in Moscow after the Events of October 23, 2002. Cases
of
Criminal
Indictment
of
Moscow’s
Chechens
Involving
False
Evidence.”
http://www.refugee.ru/news/news.htm.
66
“A Man from the Caucasus Severely Beaten Up Near Petrovskoye-Razumovskoye Underground Station.” Newsru.Com (October 24, 2002).
THE STATUS OF SEXUAL MINORITIES1
A. Sutyagin
This article has been written on the basis of analysis of information obtained from open resources and in the course of an expert survey conducted by the author.2
Unfortunately, the problem of the violation of rights of homosexual individuals is largely of a hidden character, which is accounted for by the fear
of disclosing one’s sexual identity, an undeveloped legal culture, doubt that
there are effective legal protection mechanisms, and the insufficient social
and political activeness of homosexuals. The surveyed representatives of
organizations for gays and lesbians were able to provide data on the very
few cases known to them of violations of rights and the discrimination of
homosexuals, which, according to the unanimous opinion of experts, does
not in the least mean that such cases are indeed rare. This is why even the
fragmentary reports of organizations, private individuals, and mass media
that allow one to envision the true status of homosexuals are ever so much
more meaningful.
We hope that the publication of the material provided herein will not only
inform the general public about the status of Russian homosexuals and the
key development trends in 2002, but will also facilitate more active discussion of the problems associated with the protection of rights of this social
group within the human rights community, which so far has not paid
enough attention to the discussion of this subject.
* * *
In 2002, the legal and factual status of sexual minorities in Russia practically
did not change. The positive trends which had previously emerged developed slowly. There are grounds for concern in connection with attempts by
1
The term “sexual minorities” (gays and lesbians, homosexuals) includes homosexual and
bisexual men and women.
2
The following experts were surveyed: Alexander Barannikov, Deputy Chairman of the “Union of the Right-Wing Forces” faction that condemned the proposal to reinstate criminal penalty for homosexual relations; Professor Igor Kon, author of books on homosexuality; Nicolas
Alekseyev, author of books on legal regulation of the status of sexual minorities; Masha Gessen, author of one of the first reports on the status of sexual minorities in Russia (1994); Ignat
Fialkovsky, leader of the youth human rights organization “Association HS” (St. Petersburg);
Professor Alexander Kukharsky, President of the St. Petersburg human rights center for gays
and lesbians “Krylia;” Andrey Akhramovich, leader of the human rights center “Siberian
Alternative” (Omsk); Konstantin Yegornov, President of the Murmansk regional organization
of gays and lesbians “Krug.”
Quotation without reference means that the quoted opinion was expressed by the quoted individual in the course of an interview conducted within the framework of the given expert survey.
273
some politicians to restrict the rights of representatives of sexual minorities
through the use of populist slogans of protecting public morale, which are
used to raise their popularity among voters. The year’s events have clearly
demonstrated both the evident progress achieved in the acknowledgement
of the rights of homosexuals in Russian society, and the obvious insufficiency of the level of acknowledgement of these rights, continuing discrimination, and the practically total inaction of the state with respect to the improvement of the status of sexual minorities in Russia.
The central event in the year 2002 that demonstrated the standpoint of the
state, the level of the development of legislation, as well as the level of
maturity of civic awareness of homosexuals themselves, was the legislative
initiative to reinstate a criminal penalty for consensual sexual intercourse
in a private setting between men of the legal age of consent.3
On April 22, 2002, a group of deputies from the State Duma that are
members of the “People’s Deputy” faction, headed by G. Raikov, the faction leader, introduced a package of amendments to the RF Criminal Code
that would impose a criminal penalty in the form of imprisonment for the
period of one to five years for “unnatural satisfaction of sexual needs of a
man with another man (sodomy).” The explanatory note attached to the
amendments package specified that the above notion should be interpreted
as anal penetration (other forms of sexual activity between men, as well as
sexual relationships between women,4 were not to be considered criminal).
Additionally, the explanatory note to the draft legislation specified that the
amendments were targeted at “strengthening public morale, the family
institute, and the health of the citizens of Russia,” and were to facilitate
the combat against venereal diseases and AIDS, as well as prevent underage prostitution and the proliferation of pornography.5
Trying to defend their proposal when interviewed, the authors of the draft
legislation6 (on whose behalf G. Raikov predominantly spoke) made numerous statements which should be univocally qualified as homophobic. For
example, G. Raikov said to journalists: “Homosexuality is a deviation from
the norm, and it is obvious.” “Nobody will peep through a hole to see what
people do in a dark room, but should an act of sodomy be conducted in a
demonstrative or violent manner, then it would be impossible to avoid liability.”7 It is worth mentioning that Russian legislation already contains
provisions penalizing violent and public actions of both a hetero- and homosexual nature, therefore the words of G. Raikov deprive his own proposal of any sense.
The most influential Russian politicians did not comment on this legislative
initiative. The reaction of the majority of parliamentarians who had ex3
According to the current Russian legislation it is 14 years for both heterosexuals and homosexuals.
4
Deputy À. Mitrofanov (LDPR faction) suggested that homosexual relationships between
women should be penalized as well, in order to comply with the equality of sexes principle
guaranteed by the RF Constitution.
5
“The State Duma Wants to Introduce Criminal Penalty for Sodomy” (http://gay.ru/news/
rainbow/2002/04/22.htm).
6
Among other authors of the draft legislation there were V. Bulavinov, G. Makhachev,
Z. Mutsoyev, as well as D. Rogozin, Chairman of the Russian parliamentary delegation at
PACE, who later denied his participation in the development of the draft legislation.
7
Without amendments to the RF Criminal Code, according to G. Raikov, “the deputies will
not be able to look their voters in the eye” (http://gay.ru/news/rainbow/2002/04/30a.htm).
274
pressed their attitude towards this initiative was negative.8 Some deputies
from the SPS faction openly defended the rights of homosexuals.9 Deputy
A. Vulf later made a proposal to legally ban discrimination on the basis of
sexual orientation. However some politicians supported G. Raikov and other
deputies.10 On behalf of the executive power it was Vice-Prime Minister, V.
Matviyenko, who condemned the initiative.11
On the whole, the initiative of Deputy Raikov and his colleagues played a
positive role. N. Alekseyev noted that: “Homosexuality is no longer a taboo
subject for public discussion.” “From now on politicians of the highest rank
will be able to say the word out loud, and this is great progress already.”
The subsequent recovery of both public discussion of homosexuality, and
activity of gay and lesbian organizations triggered by the legislative initiative in question, allows one to expect certain positive consequences in the
future, such as, for example, a higher level of tolerance with respect to
sexual minorities in Russia, the introduction of a legal ban on discrimination based on sexual orientation, and more a comprehensive acknowledgement of homosexuals’ rights.
For the first time in the entire history of post-Soviet Russia, a proposal
from a group of deputies made homosexuality the subject of active debate
in the mass media, the majority of which condemned it. M. Gessen notes,
“The reaction of the mass media was pleasantly surprising — practically
all the leading mass media outlets reacted with indignation.”
In addition, the legislative initiative of Deputy Raikov and his colleagues
resulted in a revival of the activities of gay and lesbian organizations,
whose reaction towards the initiative followed the very same day it was
presented by the “People’s Deputy” faction. Besides the rally at the State
8
For example, deputy leader of the “Unity” faction, V. Reznik, declared that such proposals
will “undoubtedly trigger sharp criticisms from the Council of Europe and… it is difficult to
view them as rational” (“The Draft Legislation on Banning Sodomy is Condemned by Deputies and Human Rights Activists, http://gay.ru/news/rainbow/2002/04/24.htm).
First Deputy Chairperson of the State Duma, L. Sliska, expressed a hope that “the deputies
will be reasonable enough to not consider this issue at all” (same source).
Chairman of the Federation Council, S. Mironov, commented on the draft legislation in the following manner, “Looking at such legislative initiatives one may think that all other problems in
Russia have already been solved…” (“Speaker of the Federation Council Sees no Sense in New
Amendments Affecting Homosexuals,” http://gay.ru/news/rainbow/2002/05/17a.htm).
9
In particular, A. Vulf supported the people who protested against the adoption of the draft
legislation in the course of a rally at the State Duma building that was organized by the
Transnational Radical Party, and in his statement he labeled the draft law developed by G.
Raikov and his colleagues as “directly violating fundamental human rights, introducing discrimination based on sexual orientation, and inciting hatred and enmity within the society”
(Statement of Deputy of the State Duma, A. Vulf, http://www.gay.ru/news/rainbow/2002/
04/28b.htm).
Leader of the SPS faction, B. Nemtsov, supported the position of Deputy A. Vulf (“Andrey
Vulf Developed Draft Law Introducing Criminal Liability for Incitement of Sexual Enmity,”
http://gay.ru/news/rainbow/2002/04/28.htm; “Boris Nemtsov does not Want Authorities to
Go in People’s Beds,” http://gay.ru/news/rainbow/2002/04/29.htm).
10
For example, R. Abdulatipov, representative of the Saratov region in the Federation Council, declared that “this provision should have been reinstated in the Criminal Code long ago.”
“Homosexuality lies outside of our traditions and our customs; it is abnormal”
(“R. Abdulatipov Supports Initiative of State Duma Deputies to Introduce Criminal Penalty
for Homosexuality,” http://gay.ru/news/rainbow/2002/04/24a.htm).
11
“This measure is irrational and unacceptable.” “If there is a problem it must be solved, but
not by way of introducing a criminal liability.” (“Duma Unlikely to Consider Homophobic Law
Amendments,” http://gay.ru/news/rainbow/2002/04/25a.htm).
275
Duma building organized by the Transnational Radical Party on April 26,
local public organizations in Yaroslavl, “Socialist Resistance” and “Autonomous Action,” organized a Tolerance Day on June 4, within the framework
of which a mass rally was held to defend the right to a private life, and to
condemn the legislative initiative to reinstate a criminal penalty for consensual homosexual relationships.
The St. Petersburg organization “HS” informed the European chapter of
the International Lesbian and Gay Association (ILGA-Europe) about the
draft legislation under discussion, and the latter communicated this information to P. Schieder, President of the Parliamentary Assembly of the
Council of Europe.
On April 22, the “I+I” awareness center, which was created on the basis of
a popular gay website, Gay.Ru, distributed a press release in which it decisively condemned the initiative to reinstate criminal penalty for consensual
homosexual relationships as a rude attempt to interfere with private life
and violate the provisions of fundamental international legal documents.
The press release made it clear that the center was prepared to organize
actions of civil disobedience in the case that the draft legislation should
pass.
The draft legislation is still being reviewed by the Legislation Committee
of the State Duma. Deputy A. Barannikov, a member of the Committee,
had suggested that the parliament’s lower chamber should consider the
draft law during its spring 2003 session, which, however, never happened.
Many experts12 are of the opinion that the amendments suggested by Deputy G. Raikov and his colleagues will not be considered by the State Duma
at all.
Experts agree that the fact that such a legislative initiative was put forth
at all can be accounted for by the desire to gain political advantage on the
eve of the 2003 parliamentary elections, and draw the public’s attention to
the People’s Party led by Mr. Raikov.13
According to N. Alekseyev “the reinstatement of a criminal penalty for
homosexuality… contradicts a whole number of provisions of the Russian
Constitution and the obligations assumed by the Russian Federation when
she signed the European Convention…” Adoption of the draft law would
have undoubtedly resulted in the violation of Russia’s international obligations, the fact of which Russia’s representatives in the Parliamentary Assembly of the Council of Europe were warned.14
The very fact that such a legislative initiative was put forth in country’s
parliament, as well as the statements that followed it, characterize the
situation of the acknowledgement of sexual minorities’ rights in Russia
quite adequately. The reaction of colleagues of the authors of the draft law
was, although negative, still rather reserved. As noted by I. Kon, “the ma12
For example, I. Kon states: “I am sure that this draft law, as well as the analogous proposal
of Deputy Mitrofanov, will not even be discussed by the Duma.”
13
G. Raikov points out to that himself: “In 2003 the deputies will go for re-election, many of
them — from single mandate districts — and the adoption of this law is vital for them in
order for them to be able to look their voters in the eye with dignity” (G. Raikov thinks
“deputies will not be able to look voters in the eye” without amending the RF Criminal Code
(http://gay.ru/news/rainbow/2002/04/30a.htm)).
14
N. Alekseyev, “Homosexuality in Russia: Current Legal Trends.” ILGA-Europe Newsletter. — Volume 2, issue 1, August 2002. p. 16.
276
jority of public politicians reacted cautiously, having resorted to humor and
remarks like “They have nothing better to do!”; rights of homosexuals
were openly defended only by some deputies from the SPS faction.” The
same can be said about the reaction of the mass media, for which victimization of sexual minorities was characteristic. I. Kon notes that “the low
level of awareness and sexual education of journalists is upsetting.” And
according to À. Barannikov, “very few showed a desire to offer a serious
analysis of the issue; the majority of mass media outlets preferred either to
simply make fun of the authors of the draft law, or discuss some of the
terms with a relish…” “Often, the priorities were identified in the following
manner: maybe it is correct at the current stage, but it is not the state’s
business to regulate this sphere of relationships.”
* * *
In 2002, Russian legislation did not undergo any changes when it came to
regulating the legal status of sexual minorities.15 The only normative document that directly discriminates against homosexuals today is the Order of
the Minister of Health from September 14, 2001 “On Establishing the Order of Medical Examination of the Donor of Blood and its Components”
(registered by the RF Ministry of Justice on October 31, 2001 as #3001),
that in fact reiterates the provisions of a previous, analogous document —
“Instructions for Medical Examination of Donors of Blood, Plasma, and
Blood Cells” of November 16, 1998. According to the given order, individuals “associated with risk groups (homosexuals, drug addicts, and prostitutes)” may not donate blood and/or its components.16
The most significant flaw of the Russian legislative base is the lack of a
legal ban on discrimination based on sexual orientation in various branches
of the law (first and foremost, in the criminal, and the labor law), as well
as the lack of legal regulation of same sex partnerships, which creates
premises for the violation of rights and discrimination of homosexuals in a
variety of spheres. Although acknowledgement of homosexual partnerships, and the rights associated with them, is most likely to be envisioned
as a topic to be left for the future,17 introduction of amendments designed
to protect gays and lesbians from discrimination is an actual task of the
legislature. Addressing this issue might put an end to the stagnation of
Russian legislation with respect to the acknowledgement of the rights of
sexual minorities. N. Alekseyev notes:
In 1993, Russia and, for example, Ireland, were practically in the same
starting conditions: the criminal penalty for homosexuality had been
abolished in both countries; but as opposed to Ireland, which did not stop
at that and adopted an enormous amount of anti-discriminatory legisla15
For more detailed analysis of the Russian legislation as it regulates the legal status of sexual
minorities see N. Alekseyev, “Legal Regulation of the Status of Sexual Minorities: Russia in
Light of the Practices of International Organizations and National Legislation of World’s
Countries.” (Ìoscow: BEK, 2002)
For more details see Human Rights in Russian Regions (Moscow: Moscow Helsinki Group,
2002, pp. 273 — 279).
16
N. Alekseyev, “Homosexuality in Russia: Current Legal Trends.” ILGA-Europe Newsletter. — Vol. 2, issue 1, August 2002. — P. 15.
17
According to N. Alekseyev “research shows that in the world the process of affirmation of
rights of sexual minorities is characterized by a well-defined sequence of steps: it is impossible to legally allow same sex marriages in a country in which there is no protection of gays
and lesbians from discrimination on the basis of sexual orientation in a variety of spheres.”
277
tion and have closely approached the solution of the problem of the registration of same sex unions, Russia did not see any real continuation of
process over the 10 years that have passed since the criminal penalty for
sodomy was abolished.
A. Vulf’s proposal to introduce a ban on discrimination on the basis of sexual orientation, which he expressed to counter-balance the initiative of the
“People’s Deputy” group, is not likely to see any development in the near
future. “Many politicians understand that such a problem exists, but they
think that at the current stage in Russian history it is not advisable to
mention discrimination on the basis of sexual orientation in Russian laws,”
says A. Barannikov.
Currently none of the political parties or public movements represented in
the lower chamber of the country’s parliament has openly expressed its
attitude towards the subject of the rights of sexual minorities due to fear
of negatively affecting the position of their respective party or movement.
Accusing someone of being a homosexual is still one of the most popular
cheating techniques used to compete with rivals in election campaigns. And
the example of the “People’s Party” indicates that homophobia can be
used to raise one’s popularity among voters.18
Among the most frequently encountered violations are beatings of homosexuals, threats of physical assault, and blackmailing. The Murmansk human rights organization “Krug” has obtained information about 26 incidents of beatings of homosexuals that occurred in 2002 in the Murmansk
region (data valid as of October 2002). In the overwhelming majority of
cases, the victims who had suffered severe physical injuries and had to be
institutionalized refused to file complaints with the police.
The refusal of law-enforcement agencies to prosecute illegal actions taken
against homosexuals (beatings and thefts, as a rule) causes the greatest
concern. Such cases are known to have taken place in Moscow, Yaroslavl,
and Murmansk. However, it is possible that they are much more widespread. The level of legal awareness among representatives of sexual minorities in Russian provincial cities, as well as the degree to which they are
protected, is illustrated by the leader of the Murmansk organization
“Krug,” K. Yegornov, who says:
We use the police in the following manner: they do not want to put anyone in prison, but what they do want is money. Therefore, if someone
has been beaten up, we use the police to extort money from the perpetrators to pay for the labor of the police officers and medical treatment of
the victim.
The same organization reports a case where a woman who had worked as
a secretary at a state enterprise for 15 years was dismissed when her colleagues found out about her family relationship with her female partner.
Her management forced her to write a notice in which she stated she was
leaving of her own accord.
I. Fialkovsky and K. Yegornov report cases where homosexuals were expelled from graduate school when their scientific leader and/or chair had
18
Party’s leader, G. Raikov, even went as far as to state that his party was going to the 2003
parliamentary elections with a strong intention to introduce criminal prosecution of “nontraditional sexual currents” (“Raikov’s Party Wants to Reinstate Death Penalty and Imprison
Homosexuals,” http://www.newsru.com/russia/30nov2002/ray.html).
278
found out about their sexual orientation, as well incidents when dissertational research associated with the subject of homosexuality was prohibited.
The federal executive power practically does not undertake any measures
to improve the status of sexual minorities. N. Alekseyev is of the opinion
that “the state is content with the current situation, and it does not want
to undertake any measures that might cause any controversy within society.” A. Barannikov states, “I see no steps that could be characterized as
some activity in this direction.” “As far as federal executive authorities are
concerned, they are too busy, and they do not want to pay any attention to
the problem of the rights of sexual minorities.” Federal Program “On Promotion of Principles of Tolerance and Prevention of Extremism in the Russian Federation (2001—2005)” adopted by the Russian government in 2001
did not mention the status of sexual minorities, having narrowly interpreted the notion of tolerance as tolerance only with respect to religion and
representatives of other nationalities.
Russia still lacks sex education programs in secondary schools, which could
help instill the basic principles of tolerance with respect to sexual minorities. After the failed attempt of the Ministry of Education to introduce,
with the support of the UN, experimental sex education programs for secondary schools in 1996, no further actions have been undertaken in this
direction. I. Kon remarks, “The crusade against sex education in Russia
initiated in 1996 continues, as does the clericalization of the Russian education system.”
In the meantime, the level of tolerance in Russian society (especially in the
province) with respect to sexual minorities is one of the lowest in Europe.
The lack of regular research does not allow one to precisely evaluate the
dynamics of the level of tolerance with respect to homosexuals, as well as
the perception of certain aspects of the rights of sexual minorities by the
general public. Nevertheless, results from certain research can provide a
general picture of the situation.
Raikov’s remarks victimizing homosexuals (“homosexuals may be sympathized for, and they have to be medically treated”19) quite adequately reflect the attitude towards sexual minorities within Russian society in general. For instance, according to a public opinion poll conducted by the AllRussian Center for Public Opinion Research (VTsIOM) in February of 2001,
67% of Russians thought that homosexuality is “immoral,” “a bad habit,”
“a disease or a result of psychological trauma.” Only 20% of the respondents were of the opinion that homosexuality is “a sexual orientation that
has the same right to exist as the regular sexual orientation.” In 1998 responses to the same question were distributed approximately the same. To
the question asked by VTsIOM in Moscow in March of 2002 “Do you think
it is normal and admissible to have sexual relations with a partner of the
same sex?” 76% of Muscovites answered that it was “abnormal, inadmissible.” In September of 2001, VTsIOM conducted a survey among Muscovites
in order to find out what their attitude was towards the prohibition of the
19
G. Raikov: “I am a fastidious man. I will never shake hands with the mayors of Paris and
Berlin” (http://gay.ru/news/rainbow/2002/04/30b.htm).
279
Love Parade20 by Moscow authorities, which indicated that 65% of the
respondents approved of the prohibition.
On the whole, activities of the organizations established specifically to protect rights of gays and lesbians are rather limited, first and foremost due
to insufficient funding (Russian organizations for gays and lesbians, as a
rule, operate on grants they receive from foreign partner organizations), as
well as due to homosexuals’ lack of consolidation and low level of civic activity. K. Yegornov notes, “It is truly upsetting that Russian organizations
are predominantly occupied with looking for funding instead of really
working, and that there is no connection among us, no mutual interest.” It
is worth mentioning that of the 12 organizations whose corporate profiles
are available on the Internet, only four responded to our proposal to cooperate within the frames of the given research effort.
A special hardship that gay and lesbian human rights organizations encounter in their activities (it is especially true for those working in the
provinces) is discrimination from state authorities. As reported by the
Murmansk public organization “Krug,” groups such as the “AIDS-Center,”
the regional division of the Red Cross, and some other local organizations
received an unofficial letter from the administration of the Governor of the
Murmansk region encouraging them to refrain from cooperating with this
organization. This happened after K. Yegornov, leader of the “Krug,” informed the Minister of Foreign Affairs of Sweden about the impediments
posed for the activities of his organization by regional authorities, and
about the insults that his employees had suffered from a variety of officials from different regional power bodies, and the latter raised this issue
when meeting with the Governor of the Murmansk region.
As it was previously mentioned, Russian homosexuals as such are characterized by a low level of legal awareness and social and political activity.
According to I. Fialkovsky, “the majority of homosexuals still go out of
their way to conceal their orientation.” Very indicative was the response of
one of the visitors at a website for homosexuals in Nizhny Tagil to our request to advise us on known cases of violations of the rights of homosexuals (in particular, in the working place): “Well, we are not in the habit of
putting this on display…” This was the only response to the messages that
we had left on ten websites for homosexuals of Vladivostok, Ekaterinburg,
Irkutsk, Kaliningrad, Kostroma, Yaroslavl, Krasnodar, Cheliabinsk, and St.
Petersburg.
All of this results in the concealment of the true scale of discrimination
and violation of the rights of representatives of sexual minorities, and in
the perpetuation of the illusion that this social group’s well-being. N. Alekseyev notes, “The uniqueness of the Russian situation is that the judicial
power has not made a single ruling related to the rights of gays and lesbians. It is impossible to imagine something like this in other developed
countries where a multitude of precedents exist.”
20
For more details see Human Rights in Russian Regions (Moscow: Moscow Helsinki Group,
2002, pp. 273—279).
280
ANNEX
LIST OF REGIONAL ORGANIZATIONS-MEMBERS
OF THE HUMAN RIGHTS MONITORING NETWORK:
Region
Organization
Coordinator
Adyg Republic
Maikop City Public Organization “South-Russian
Independent Institute of Social Researches
Tsvetkov
Oleg
Aginsky Buryatsky
autonomous district
Regional Public Movement “Razvitie”
Damdinov
Tsyrendorzhy
Altai Republic
Public Environmental Organization “Treasurers of
the Lake”
Veselovskaya
Olga
Altai territory
Altai Territorial Human Rights Public Organization “Bastion”
Blem
Andrej
Amur region
“Amur Center of Human Rights” Regional Public
Organization
Morar
Oleg
Arkhangelsk region
Arkhangelsk Branch of All-Russian Public Movement “For Human Rights”
Gabidulin
Rauf
Astrakhan region
“Committee of the Assistance to
the Protection of Legal Human Rights” Astrakhan Regional Public Organization
Stepanova
Tatiana
Bashkortostan Republic
(Bashkortostan)
Public Foundation “International Standard”
Potnin
Konstantin
Belgorod region
Shebekinsk Public Organization “Civic Agreement”
Sheglova
Tatiana
Bryansk region
Bryansk Regional Public Charity
Organization “Human Rights Association”
Komogortseva
Ludmila
Buryat Republic
(Buryatia)
Public Organization “Republican Human Rights
Center”
Kislov
Evgeny
Chechen Republic
(Chechnya)
Interregional Public Organization “Society of
Russian-Chechen Friendship”
Ezheev
Imran
Chelyabinsk region
Chelyabinsk City Youth Public Organization
“Human Rights Protection”
Sevastianov
Alexey
Chita region
Authonomous Non-commercial Organization “Zabaikal Center of Ecological and Economic Researches and Programs”
Glazyrina
Irina
Chukotka autonomous
district
Public Environmental Association “Kaira Club”
Litovka
Valentina
Chuvash Republic
(Chuvashia)
Public Organization “Human Rights Committee of
Chuvash Republic”
Ayvenova
Nadezhda
283
Dagestan Republic
Independent Trade Union of Businessmen and
Drivers of Dagestan
Yunusov
Abdurakhman
Evenk autonomous
district
Krasnoyarsk Regional Public Organization “Public
Committee for the Protection of Human Rights”
Vedenkov
Vladimir
Ingush Republic
Regional Public Organization “Press Center”
Saratova
Kheda
Irkutsk region
Autonomous Nonprofit Organization “Civil Control over the Observance of Human Rights”
Stavrov
Leonid
Ivanovo region
Public Political Organization “Ivanovo Regional
Society for Human Rights”
Valkov
Sergey
Jewish autonomous
area
Regional Public Organization “Egida” for the
Protection of Human Rights and Civil Liberties in
the Jewish Autonomy
Rynkova
Evgenia
Kabardino-Balkarian
Republic (KabardinoBalkaria)
Republican Public Human Rights Organization
“Jurist”
Ketov
Albert
Kaliningrad region
Kaliningrad Regional Public Organization “Protection of Human Rights and Freedoms”
Dolgopolov
Boris
Kalmykia-Khalmg
Tangch Republic
Regional Public Organization “Kalmykya Human
Rights Center”
Ateev
Semen
Kaluga region
Obninsk Regional Human Rights Group
Kotlyar
Tatiana
Kamchatka region
Public Organization “Kamchatka Regional Human
Rights Center”
Gonchar
Viktor
KarachaevoCherkessian Republic
(KarachaevoCherkessiya)
Karachaevo-Cherkessian Regional Public Political
Movement “Vozrozhdenie”
Panov
Vladimir
Karelia Republic
Karelia Regional Public Organization “ Karelia
Union for Children Protection”
Palvlova
Nadezhda
Kemerovo region
Interregional Public Independent Human Rights
Organization “Legal Society”
Pyl
Yury
Khabarovsk territory
All-Russian Public Movement “For Human
Rights,” Khabarovsk Regional Branch
Bekhtold
Alexander
Khakassia Republic
Khakassia Republican Human Rights and Philantropic Public Fund “Our Right”
Ichshenko
Alexander
Khanty-Mansiisky
autonomous district
Surgut Branch of the Tyumen Regional Historical-Educational, Human Rights and Charity Society “Memorial”
Kuzmina
Evgenya
Kirov region
Kirov Regional Human Rights Center
Pimenov
Alexander
284
Komi Republic
Commission on Human Rights Protection under
the Syktyvkar Regional Public Organization
“Memorial”
Sazhin
Igor
Komi-Permyatsky
autonomous district
Komi-Permyatsky Regional Public Organization
“Human Rights Center — Pera Bogatyr — Right
for Security”
Kleshina
Larissa
Koryak autonomous
district
Eastern Project- Kamchatka
Dobrobaba
Elena
Kostroma region
Kostroma Regional Public Ecological Movement
“In the Name of Life”
Terekehova
Nina
Krasnodar territory
Regional Public Ogranization “Krasnodar Human
Rights Center”
Tishinsky
Vladimir
Krasnoyarsk territory
Krasnoyarsk Regional Public Organization “Public
Committee for the Protection of Human Rights”
Gorelik
Alexander
Kurgan region
Kurgan Regional Public Movement “For Fair
Elections”
Isakaev
Gabdulla
Kursk region
Inter-Regional Public Organization “Central
Chernozyomny Research Center on Human
Rights”
Ivanov
Yaroslav
Leningrad region
Philanthropic Autonomous Non-Profit Organization “Harold and Selma Light Legal Assistance
Center”
Massarsky
Rudolf
Lipetsk region
Lipetsk Regional Public Organization “Lipetsk
Society for Human Rights”
Rodionov
Vasily
Magadan region
Magadan Regional Public Organization “Regional
Development Foundation”
Zhukov
Pavel
Marii El Republic
Public Organization “Human Rights Center of the
Marii El Republic;” Yoshkar-Ola City Public Organization “Man and Law”
Paydoverova
Nadezhda
Mordovia Republic
Public Organization “Mordovia Pepublican Human Rights Center”
Guslyannikov
Vasily
Moscow
Human Rights Institute
Petrova
Elena
Moscow region
Moscow Helsinki Group
Belenkina
Nina
Murmansk region
Kolsk Association of Women Lawyers
Paikacheva
Irina
Nenetsky autonomous
district
Non-profit organization “‘Minlei Foundation”
Toskunina
Tamara
Nizhnii Novgorod
region
Regional Public Organization “Nizhny Novgorod
Human Rights Society
Tagankina
Nina
285
North Osetia Republic
Vladikavkaz Center of Social and Humanitarian
Research of the Vladikavkaz Press Club”
Pliev
Alan
Novgorod region
Novgorod Regional Public Organization “Regional
Human Rights Center”
Davydovskaya
Nella
Novosibirsk region
Novosibirsk City Public Organization “Center for
Human Rights Achtivity and Legal Information”
Savchenko
Yakov
Omsk region
Center for Legal Protection
Yatsenko
Natalia
Orenburg region
Orenburg Human Rights Organization “Your
Rights”
Kochkin
Valery
Oryol region
Institute of Public Problems “United Europe,”
Public Charity Institution of Oryol Region
Katkova
Veronika
Penza region
Penza Regional Branch of All-Russian Public
Movement “For Human Rights”
Bychkov
Valery
Perm region
Interregional Human Rights Organization “Ural
Center for NGOs’ Support”
Viyuzhanin
Vasily
Primorsky territory
Legal Information Center of Aircraft Branch
Workers
Kosilov
Kirill
Pskov region
Pskov Regional Public Movement “Veche”
Donovskaya
Nadezhda
Rostov region
Rostov Regional Public Organization “Christians
Against Torture and Child Slavery”
Velikoredchanin
Stanislav
Ryazan region
All-Russian Public Historical, Educational Philanthropic and Human Rights Society “Memorial,”
Ryazan Branch
Ivanova
Sofia
Sakha Republic
(Yakutia)
Siberia Consulting Center of Humanitarian Education and Socio-Political Research
Sergeeva
Irina
Sakhalin region
Public Organization “Public Human Rights Center
of the Sakhalin Region”
Kuperman
Mark
Samara region
“SOFIT,” Samara Public Fund of Innovative
Technologies in Education
Chernova
Tatiana
Saratov region
Regional Public Organization of Chernobyl Invalids “Saratov” Human Rights Center “Solidarity”
Nikitin
Alexander
Smolensk region
Smolensk Charity Foundation “Dobroserdie”
Bakhmetova
Tatiana
St. Peterburg and Leningrad region
Public Humanitarian and Political Center
“Strategy”
Arakelyan
Antuan
Stavropol territory
Public Non-Commercial Organization “Stavropol
Regional Human Rights Center”
Seminenko
Alexander
286
Sverdlovsk region
Public Union “Sutyazhnik”
Belyaev
Sergey
Taimyr (DolganoNenetsky) autonomous
district
Taimyr Human Rights Center
Varnakov
Arthur
Tambov region
Tambov Public Organization “Union of Young
Lawyers”
Konovalov
Dmitry
Tatarstan Republic
Association of Human Rights Organizations of the
Tatarstan Republic Public Organization “Human
Rights Center of the Kazan City”
Manasipov
Farit
Tomsk region
Regional Public Organization “Tomsk Research
Center on Human Rights”
Kandyba
Nikolai
Tula region
Tula Public Organization “Tula Human Rights
Center”
Kurenkov
Viktor
Tver region
Tver Regional Branch of the “Memorial” Society
Sharipova
Valentina
Tyumen region
All-Russian Public Movement “For Human
Rights” Tyumen Regional Branch
Postnikov
Vadim
Tyva Republic
Tyva Republican Public Human Rights Movement
Perelyaeva
Avgusta
Udmurt Republic
Local Public Organization “Initiative”
Kokorin
Alexander
Ulyanovsk region
All-Russian Public Historical and Educational
Philanthropic and Human Rights Society “Memorial,” Ulyanovsk Branch”
Bakhanova
Elena
Ust-Ordynsky Buryatsky autonomous district
Charity Foundation “Hope”
Kamyshev
Vitaly
Vladimir region
Regional Public Human Rights Organization
“Vladimir Center for Aid and Protection”
Dulov
Maxim
Volgograd region
The Lower Volga Region Human Rights Organization “Civil Society and Ecological Safety”
Naumov
Stanislav
Vologda region
Vologda Regional Human Rights Public Organization “Freedom”
Lyndrik
Vladimir
Voronezh region
Inter-regional Human Rights Group
Gnezdilova
Olga
Yamalo-Nenetsky
autonomous district
Yamalo-Nenetsky Regional Human Rights Center
Berzina
Lyudmilla
Yaroslavl region
Yaroslavl Regional Public Institution “Human
Rights Center”
Storozhev
Valery
287
MOSCOW HELSINKI GROUP
HUMAN RIGHTS
IN RUSSIAN REGIONS

human rights in russian regions

Transcription

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