28.10.2008
The Attitude and Roles of Russians under 35 - Human Rights and Rule of Law Issues Today and Tomorrow Anton Burkov - Currently a Ph.D. candidate in law at Cambridge University, Burkov has been on the staff of the NGO Sutyajnik's Ural Center for Constitutional and International Human Rights Protection for ten years. In 2001 he was awarded the Themis prize "for contributions toward the creation of a democratic society and the development of state legal institutions." Sutyajnik (Litigator) is a non-governmental human rights organization of young lawyers and senior law students founded in Yekaterinburg, Russia in 1994. As a human rights resource center, it helps Russian citizens and organizations realize their rights by litigating public interest cases, by educating people about human rights, and by informing them about mechanisms for the protection of their rights guaranteed in the Russian Constitution and international treaties. One of Sutyajnik's principal goals is to defend human rights by working to bring domestic legislation and practice into conformity with international and constitutional standards. Through its various activities, the ultimate goal of the NGO and its young staff of lawyers and journalists has been to develop an effective mechanism for making state officials and state agencies responsible for any violations they commit of the Russian Constitution or our laws and for bringing them to justice. Responsible state officials today are the key to Russia's success tomorrow. In the Soviet Union, there was no tradition of state actors' legal or material responsibility for violations of law. Legislation providing for this was lacking, with few exceptions (such as the protection of drivers from abuse of power by the traffic police). Nobody could sue the government or its officials for violations and ask a court to award compensation for the consequent damages. The formal reason for the absence of legal responsibility was the proclaimed "lack of class conflicts" in Soviet society, which was supposed to automatically preclude conflicts of interests between citizens and state officials. Unfortunately, the reality proved to be very different - it caused lack of accountability. Mikhail Gorbachev, after coming to power n 1985 announced that his main principle of governing the state would be the priority of the rule of law. The realization of this principle could be achieved only in an environment where the state and its officials were consistently held responsible for and financially liable for their violations of human rights and abuse of power. Gorbachev understood this clearly, and the introduction of an appropriate mechanism for its enforcement was one of Gorbachev's priorities. A first step towards creation of a "state ruled by law" was the adoption of a 1987 statute on the procedure for bringing complaints against state officials for human rights violations. In 1989 a new version of this law was passed, and in 1993 the law was adopted which remains in force in Russia today. The law provides, in principle, that anyone claiming there was a violation of law by state officials can bring the perpetrator before a court and sue for pecuniary and non-pecuniary damages. All the civil procedural guarantees had to be followed by the court when considering cases. Cases were decided not, as in the past, by a higher official, who often had issued the orders leading to human rights violations, but by a court. And the applicant could ask for compensation of damages. Since 1993 many statutes have been promulgated which establish similar rules, but their implementation is very deficient. It is possible to get a judgment against a particular state official or agency which includes the award of monetary compensation to be paid by the Ministry of Finance, but its execution is impossible. The reason is simple. There is no procedure which allows an individual or a court to force the execution of a judgment against the Ministry of Finance. The bailiff system, responsible for execution of court decisions, has no authority over the execution of judgments against the Ministry of Finance. It means that the payment of money awarded by a court is totally up to the good will of the Ministry. No lien against its bank accounts, assets, or other property can be imposed. This situation was not noticed by the world community until Russia joined the Council of Europe in 1996 and ratified the European Convention of Human Rights in 1998 and recognised the right of individuals to petition the European Court of Human Rights. The European Court is flooded by cases on lack of execution of judgments requiring payments by the Ministry of Finance. As of today 26% of all cases considered by the European Court are cases against Russia, 25% of which are cases on non-execution of judgments. In other words, the European court has turned into the bailiff which has to deal with Russian cases. After intervention of the European Court, the Ministry of Finance pays awarded compensations within 3 months from the date of the European judgment from a designated item of the state budget. Of course, the Council of Europe and the European Court are not happy about this situation. In response to their pressure, one would have thought that the solution lies in giving the appropriate powers to the bailiff system. Instead, the Russian government has proposed a draft law creating a new Russian court to deal with cases of non-execution of judgments instead of the European Court. It could have been an alternative solution, but it achieves nothing when we read one clause of the draft law. It states that the defendant in such cases is the same Ministry of Finance. Once again - no forceful execution of judgments possible, no responsibility of state officials. The situation reverts to where it stood before perestroika. Today Russia is paying off its foreign debts, but accumulating internal debts. The solution lies in cooperation with existing international institutions, particularly the Council of Europe and the European Court of Human Rights. So far this is the only way for a Russian citizen to challenge the resistance of the national authorities. A lot has been done to alleviate the problem, much of it thanks to the efforts of young lawyers of Sutyajnik. The defects of the Russian government's proposal to secure payment of court awards has to be explained to the European Court. We shall use the Convention for the Protection of Human Rights more intensively. What is the role of young people in the general human rights movement? What is the attitude of young people to human rights issues? Sutyajnik's young lawyers and journalists rarely apply to work for us because they want to dedicate their time to the cause of human rights. Most of them do not even know what human rights are. Many of them do not make a conscious choice; they are simply looking for a job. Some come to human rights NGOs in order to gain experience and then leave for a law firm or a corporation. This isn't a surprising - young people have many things to worry about. Although many young people find jobs in the human rights world without any altruistic purpose and lacking any knowledge of human rights issues, some rather quickly become devoted to the cause and do amazing things. Some of them stay for a long time, others leave earlier. But if a young man stays long enough, he leaves the NGO a different person. And I want to stress that an important mission of NGOs is to educate their own employees. They learn about human rights, they learn practical applications of law, they see people in grief, they start to care about human rights not just by reading about them but by working to secure them for fellow citizens. And I am very much convinced that after this acquaintance with human rights they will never stop caring about them and about social justice. The sad part is that today getting young people involved in human rights activities is more difficult than in earlier times. The goal to make money has become a priority for the young. Today it isn't "cool" to devote yourself to legal work in a human rights NGO: no money to be made, no career to pursue, and the possibility of being harassed or even punished for doing your job. In the late 1990s, our NGO had eight or more full-time lawyers and five to eight interns. Young students wanting to work as interns were put on a waiting list. Today it is difficult to find paid interns, not to mention lawyers, and virtually impossible to find volunteers. Students who lack any experience or practical skills ask for a salary equal to that of an experienced teacher. In the 1990s, we were happy to work for free just to gain experience. In the 1990s educational opportunities for rich and poor students were more or less equal. Today students from wealthy families tend to be well-educated, and the rest usually never get a proper education. The rich are going into business and government - busy making money and starting a career. They view human rights as obstacles in their way. The rest are angry, looking for easy answers to difficult questions. They aren't attracted to the complicated issue of human rights, but are more likely to fall prey to xenophobia and nationalism. This leaves human rights NGOs short of personnel when the demands for securing and defending human rights are increasing.
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