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2 June 1998
Honouring of obligations and commitments by the Russian Federation
Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe
Co-Rapporteurs: Mr Rudolf Bindig, Germany, Socialist Group and
Mr Ernst Muehlemann, Switzerland, Liberal, Democratic and Reformers' Group
On its accession to the Council of Europe, on 28 February 1996, the Russian Federation entered into a number of commitments. This information report aims at assessing to what extent these commitments are at present respected. It has been prepared after numerous visits of the rapporteurs to Russia and thanks to a close and constructive co-operation with the Russian parliamentary delegation, which the rapporteurs are grateful for and which they hope can be continued in future in the same way.
The progress achieved by Russia towards the rule of law and democracy for several years is undeniable, as witnessed by the various pluralistic and democratic elections that marked Russia's political landscape in recent years. Political pluralism, freedom of opinion and the transition to a market economy are being achieved in spite of understandable difficulties. Russia's ratification, on 5 May 1998, of the European Convention on Human Rights, the Anti-Torture Convention and the European Charter of Local Self-Government represents a historical step in the enshrinment of this immense country in the system of values fostered by the Council of Europe. The forthcoming transfer of responsibility for the penitentiary system to the Ministry of Justice, the entry into force of new civil and criminal codes and the respect for the presidential moratorium on the death penalty since August 1996, represent further fundamental steps forward.
Nevertheless, in many fields Russia must make further efforts to fulfil the obligations and commitments it entered into when joining the Council of Europe ; this obviously justifies the need to continue the monitoring process as well. The Monitoring Committee agreed that the attention should be directed in particular to the implementation of the following obligations and commitments :
- implementation of the law across the country's entire territory;
- implementation of freedom of movement and of choice of residence ;
- respect for social rights, in particular the payment of salaries and pensions, in conformity with the European Social Charter, which Russia is called upon to ratify in the near future;
- complete abolition of the death penalty ;
- lifting of the reservations to the European Convention on Human Rights;
- implementation of freedom of religion ;
- adoption of a code of criminal procedure, compatible with European standards ;
- reform of the Prosecutor's Office ;
- reform of the penitentiary system, improvement of prison conditions and increased use of non custodial sentences ;
- fight against ill-treatment of conscripts and adoption of a law on alternative military service;
- fight against corruption and organised crime in the economy ;
- reform of the secret services with a view to removing the Federal Security Service’s right to conduct criminal investigations and run their own pre-trial detention centres ;
- speeding up of the prosecution of human rights violations during the conflict in Chechnya and search for a political settlement of the conflict;
- maintaining friendly relations with neighbouring states.
Finally, the rapporteurs should ensure that co-operation between the Monitoring Committee and the Russian parliamentary delegation continues to develop in a fruitful manner, in order to ensure Russia's complete integration as a full member of the Council of Europe. This is the reason why the rapporteurs recommend an enlargement of co-operation programmes with Russia, and in particular of the joint European Union/Council of Europe programme for the strengthening of federal structures and human rights protection machinery, and for reform of the legal system.
Table of contents
I. Introduction 4
II. The rule of law and human rights 5
A. Introductory evaluation 5
B. Ratification of Council of Europe conventions and legislative reform 6
C. Reform of the prosecutor's office 9
D. Abolition of the death penalty and immediate moratorium on executions 10
E. Prosecution of human rights violations in Chechnya 12
F. Conditions in prisons and pre-trial detention,
and reform of the penitentiary system 13
G. Application of laws 15
• Freedom of movement and choice of residence ..15
• Presidential decrees 16
III. The development of democracy 17
A. Introductory evaluation 17
B. Reform of the secret services 19
C. Ill-treatment in the armed forces and the adoption of a law
on alternative military service 20
D. Protection of minorities 21
E. Guarantee of local self-government 21
IV. Transition to a market economy 22
V. Areas of political and military tension 24
A. Within the country 24
B. With neighbouring states 24
VI. Conclusions 25
Appendix I: Opinion n° 193 28
Appendix II: Programme of the Rapporteurs' visit to Moscow and Grozny
(9-13 November 1997) 34
Appendix III: Signed and ratified Conventions 36
Appendix IV: Comments of the Delegation of the Federal Assembly of the Russian
Federation to the Preliminary Draft Report (AS/Mon (1997) 33) 39
1. The Russian Federation acceded to the Council of Europe on 28 February 1996, following the Assembly's recommendation of 25 January 1996 that the Committee of Ministers invite her to become a member, on the basis of certain commitments and understandings outlined in Opinion No. 193 (1996) (see Appendix I) or included in various written communications from high-ranking Russian officials prior to accession1. When Russia joined the Council of Europe, she also accepted the obligations incumbent on all member states under Article 3 of the statute, notably the guarantee of the rule of law and the enjoyment of human rights and fundamental freedoms by all persons within her jurisdiction.
2. On 25 April 1996, the Council of Europe decided to start the monitoring procedure in accordance with Order No. 508, and entrusted it to the three then rapporteurs - Rudolf Bindig for the Committee on Legal Affairs and Human Rights, Ernst Muehlemann for the Political Affairs Committee and David Atkinson for the Committee on Relations with European Non-Member Countries. Following the adoption of Resolution 1115, the procedure was handed over to the new Monitoring Committee, which appointed MM Bindig and Muehlemann as co-rapporteurs on Russia.
3. Having already visited Russia on numerous occasions in connection with its application for membership, the rapporteurs visited Moscow from 17 to 20 December 1996 to verify the country's compliance with its commitments. The two reports prepared after the visit were sent to the Russian parliamentary delegation, which submitted a number of comments on 24 June 1997.
4. This information report2 takes account of these various elements and also of the lessons learned from the visits of the Ad Hoc Committee on Chechnya (30-31 May 1996, 8-10 June 1996 and 27-29 August 1996) and the delegation sent to observe the elections in Chechnya (2-4 July 1996 and 26-28 January 1997). These visits allowed the rapporteurs to forge valuable contacts with leading members of the President's staff in the Kremlin, with members of the government, the State Duma and the Council of the Federation, and with representatives of public authorities, the media, the business sector, the army and non-governmental organisations in Moscow and many other districts. The close co-operation of the Russian delegation to the Council of Europe proved especially useful, and sincere thanks are due to it for its very constructive assistance.
5. On their visit to Moscow and Grozny from 9 to 13 November 1997 (programme in Appendix II), the rapporteurs noted that, although considerable progress had been made, there were still delays in honouring commitments, but not usually for lack of goodwill. The complexity of the circumstances and the immensity of the task in a country the size of Russia often make it hard to settle problems within the deadlines. This is why this report reflects the current state of the on-going monitoring procedure. It is based upon the preliminary draft report which was transmitted to the Russian parliamentary delegation on 30 January 1998 and on the delegation’s written comments of 23 April 1998 (see Appendix IV).
II. The rule of law and human rights
A. Introductory evaluation
6. When Mikhail Gorbachev came to power on 11 May 1985, it was widely believed that the vast reform process, aiming at glasnost and perestroika, would rapidly lead to greater respect for the rule of law in the then Soviet Union. Some significant results were indeed achieved within a short time, and the totalitarian system became noticeably more flexible. Support for a democratic, rule-of-law system grew steadily and, when the first putsch failed in August 1991, it seemed that the breakthrough to West- European-style democracy was succeeding.
7. This reading of the situation proved over-optimistic, however, as the political reformers failed to convince the public that their policies were the right ones. A counter-movement, headed by nationalists and conservatives, gradually emerged, gaining ground even in parliament. The resulting conflict culminated in the second putsch in October 1993, when the parliament in the White House was dissolved by force.
8. The political struggle led to the adoption of a new Constitution, greatly increasing the President's powers, at the end of 1993. The Constitution guarantees ideological and political pluralism. The State Duma was democratically elected. These elections gave the reform communists and the nationalists a majority in the Duma. Economic problems, social injustice and the growth of crime have become political priorities, in addition to the rule of law, human rights and democracy.
9. The biggest setback for reform came with the military action taken against Chechnya in December 1994. The conflict showed once again that force is no remedy for domestic policy mistakes. After a bloodbath, the fighting ceased on 31 August 1996 and a peace agreement was signed by Presidents Yeltsin and Maskhadov on 12 May 1997. It is to be hoped that both sides will prove responsible enough to secure an acceptable political solution.
10. These developments, and the painful setbacks which accompanied them, are proof yet again that the path which leads from subjection in a dictatorship to free citizenship in a democracy is full of pitfalls. This makes the successes achieved so far all the more laudable, and they should not be obscured by the setbacks, some of which are understandable.
11. In any case, there are enough progressive elements at all levels of government, parliament and judiciary who are working to establish the rule of law by political, legal and administrative means. Thus the legislative process is still operating at full throttle, even if putting theoretical improvements into everyday practice is very difficult.
12. It is clear today that the quiet collapse of communist ideology has brought new spiritual and intellectual freedoms, which are reflected in increased cultural openness and greater academic and scientific objectivity. The change of government in March-April 1998 took place in accordance with the constitution. Freedom of assembly and the press are also important here, although financial factors have unfortunately made some sections of the media dependent in new ways. Action to reform the army's training methods and discipline, as well as the inhuman prison system, is particularly necessary. Also to be deplored is the adoption, in September 1997, of the Act on freedom of conscience and religious organisations, which discriminates to some extent against "non-traditional" religions3. Further causes of concern are the treatment of refugees and displaced persons, and the continuing obstacles with regard to the freedom of establishment confirmed by the Constitutional Court, particularly in Moscow, where the municipal authorities use police officials to apply decrees which the Constitutional Court has declared invalid.
13. There can be no doubt that the rule of law in Russia still has serious flaws, which must be overcome as rapidly as possible to bring the country into line with the Council of Europe's legal standards. The Council itself can help decisively to get things moving in the right direction by providing guidance and supervision through its monitoring programme, but also by working with Russia and helping it to consolidate its democratic institutions. Co-operation must not, however, be limited to occasional visits, but must be a two-way, ongoing process, particularly in the context of the joint European Union/Council of Europe programme for the strengthening of federal structures and human rights protection machinery, and for reform of the legal system. For this reason, efforts should also be made to improve the implementation of the Assembly’s decision to “establish, - with the close co-operation of Russia’s national parliamentary delegation – its own parliamentary advisory and control programme” (see par. 8 of Opinion 193).
B. Ratification of Council of Europe conventions and legislative reform
14. Upon accession, Russia committed itself to ratify the European Convention on Human Rights (ECHR) and its Protocols No. 1, 2, 4, 7 and 11 within one year. With a delay of a little over one year, the Russian Federation ratified the ECHR and all its Protocols (with the exception of Protocol No. 6 on the abolition of capital punishment) on 5 May 1998. When ratifying the ECHR, the Russian authorities made two reservations concerning Article 5, par. 3 and 4, of the Convention (pre-trial detention or arrest). These reservations will be lifted when the Russian legislation will be brought into line with the Convention’s provisions. Although these reservations limit to a certain extent the protection the “habeas corpus” provisions of the Convention can afford, they should not overshadow the importance of Russia’s acceptance of all other provisions of the Convention. However, the Assembly should see to it that these reservations be lifted as soon as possible, that is in a timeframe not exceeding one year.
15. Russia also signed and ratified several other conventions (see Appendix III), including the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Anti-Torture Convention) and its Protocols, and the European Charter of Local Self-Government. The Framework Convention for the Protection of National Minorities has been submitted for ratification (but not the European Charter for Regional or Minority Languages). Hopefully, these latter two important legal instruments will be ratified in the near future, as well. What counts now, as far as the ECHR, the Anti-Torture Convention and the European Charter of Local Self-Government are concerned, is their implementation across the Russian Federation’s entire territory, and the government’s full co-operation with their control institutions (especially with the European Court of Human Rights and the Anti-Torture Committee).
16. Paragraphs 7 iv. and v. of Opinion No. 193 (1996) enshrined Russia's commitment to pursue legislative reform in line with Council of Europe standards and principles as a matter of priority. The adoption of the following legislation was deemed the most important: a new criminal code and code of criminal procedure, a new civil code and code of civil procedure, a law on the functioning and administration of the penitentiary system, on the role, functioning and administration of the Prosecutor's Office and of the Office of the Commissioner for Human Rights, a law on the protection of national minorities, and on freedom of assembly and freedom of religion.
17. Considering the size of this gigantesque task, which is not made easier by Russia's relatively cumbersome legislative process, legislative reform by Parliament seems to be progressing rather satisfactorily. On the positive side, both houses of parliament and the President of the Federation, after long and laborious deliberations and negotiations, finally approved a new Criminal Code in 1996, which is closer to European standards than the previous one (which dated from the sixties). It entered into force on 1 January 1997, and contains 360 articles. The adoption and entry into force of this new Criminal Code undoubtedly represents a very important step in the direction of the establishment of the rule of law and can be seen as a starting-point for the long overdue penal reform in the Russian Federation, in line with one of the most important commitments the Russian authorities entered into upon their accession to the Council of Europe.
18. However, the new Criminal Code is still not perfect. While previously vaguely worded offences such as "treason" and "rowdyism and hooliganism" have been rendered more precise, and the baggage of Soviet ideology with its pre-eminence of the state over the person has been dropped, the principles on which the new Criminal Code is based in some cases still fall short of international standards. In particular, the principle of humanism as prescribed in Article 7 of the new Code only lays down that punishment and other penal measures may not have the causation of physical pain and discomfort, or the degradation of human dignity, as their purpose. In other words, if such measures only happen to lead to pain and humiliation, without this being expressly intended - as in the case of the inhuman and degrading conditions in some prisons -, they are not covered by the principle of humanism in the Russian reading.
19. Another problematic aspect of the new Criminal Code is the fact that the preparation of crimes is penalised too harshly. Article 66 stipulates that the term or extent of the punishment for the preparation of a crime should not exceed half the maximum term or extent of the most strict type of punishment, envisaged by the article for an accomplished crime, and three-quarters for an attempt to commit a crime: these are still very harsh sentences for unaccomplished crimes4. On the other hand, much lower penalties are applied to criminal acts committed "in the interest of the state": for example, carrying out an illegal order is not penalised at all, if the person who carried out the order did not realise that it was illegal (Art. 42). This rule can, in effect, make it impossible to e.g. penalise those Russian servicemen who committed grave human rights violations in Chechnya, such as attacking civilians, if they acted under orders. In the same vein, gross negligence is not penalised in connection with exceeding the right to self-defence or the right of arrest, so that police officers, for example, who suffocated a suspect while gagging him or shot him to death without expressly intending to do so, would get off scot-free.
20. The new Criminal Code still foresees the death penalty, but its scope was considerably reduced: from 28 to 5 crimes. However, unfortunately, the death penalty is not even limited to murder, the encroachment on the life of a statesperson or public figure (Article 277), or on the life of a policeman or a judge (Article 295) is already considered sufficiently grave to attract the death penalty5. Still, a step in the right direction has been made. We shall come back to the question of the abolition of the death penalty in sub-chapter D of this chapter.
21. Despite its shortcomings, the new Criminal Code is to be welcomed as a definite step in the right direction. Unfortunately, it is not clear whether the new Code of Criminal Procedure will go in the same direction. The draft adopted by the Duma in the first reading, of which we unfortunately do not have a copy, was classified by non-governmental organisations as “highly problematic”. While the new draft reportedly foresees the transfer of the power to issue arrest warrants from prosecutors to judges, a step which is necessary to bring Russian legislation in line with the European Convention on Human Rights, apparently the draft does not foresee an investigation of the need for detention on the part of the judge. This would be a shame, since Russian judges and prosecutors alike take far too much recourse to pre-trial detention6, currently often even for petty crimes. The draft new Code of Criminal Procedure is also reported to preserve a neo-inquisitional model of criminal procedure (giving the bodies of criminal prosecution considerable advantages over the defence). This is not in line with the Constitution, which declares the principle of conducting legal proceedings with both sides equal and adversarial in Article 123 part 3. The presumption of innocence is apparently also not upheld in all instances. In the view of some legal experts7, “many important provisions of the bill contradict tenets of the RF Constitution, and some of them worsen the legal position of an individual”. It would thus be desirable that the draft Code be reconsidered and corrected where necessary in the light of these comments, even though its adoption is quite urgent8.
22. A new Law on the execution of sentences (Penitentiary Code) was adopted by the State Duma on 18 December 1996, and by the Federation Council on 25 December 1996. It entered into force on 1 June 1997. There were few complaints or comments on this new and important piece of legislation. We were given a copy of it in Russian, but, since it has 190 articles, cannot hope to evaluate it without expert help. We propose that Prof. Schroeder, a legal expert from Regensburg University in Germany who has already evaluated several laws for us in the past, take a closer look at this law for us before we pass judgment on it. The concern of Mr Anatoly Pristavkin, the Chairman of the Presidential Pardon Commission, with regard to Article 184 of the new law, which dealt with the execution of the death penalty and implied that a prisoner sentenced to death who did not appeal to the President for pardon, agreed to his execution, has been assuaged by an amendment of the respective article undertaken in December 1997. In accordance with this amendment, no death penalty may be executed without the consent of the President of the Russian Federation, assuring the continued application of the de facto moratorium on executions instituted by President Yeltsin.
23. A new Civil Code has already been adopted and is in force. The draft Code of Civil Procedure has not yet been considered by the State Duma, but it is in any case less urgent than the Code of Criminal Procedure from a human rights point of view. The Law on the Office of the Commissioner for Human Rights was adopted by the State Duma on 25 December 1996, and by the Federation Council on 12 February 1997. It was signed into law by the President on 26 February 1997, and the Commissioner - Mr Oleg Mironov - has finally been elected by the State Duma on 22 May 1998. It was very important that the Commissioner be elected, so as to ensure that an independent Commissioner can take over the function of protecting human rights from the prosecutor's office.
24. Concerning a law on the freedom of assembly, work seems to have come to a certain standstill, after several drafts adopted by the State Duma were refused either by the Federation Council or the President. A law on political parties is also stuck in a conciliatory commission of the two chambers of parliament. A law on cultural autonomy providing for additional benefits to the country's smallest minorities (numbering less than 50,000 persons of indigenous peoples residing on the territory of traditional settlements) has been signed into law by the president. We will come back to this question under sub-chapter D. of Chapter III.
25. The Russian authorities committed themselves upon accession to the Council of Europe to, inter alia, reform the law on the role, functioning and administration of the prosecutor's office. There seems to have been no reform of the relevant law itself since Russia’s accession, but the reform of the prosecutor’s office is nevertheless very slowly being affected by the entry into force of other legislation, such as the Law on the Office of the Commissioner for Human Rights, and (in the future), by the new Code of Criminal Procedure. We will deal more extensively with this question in the following sub-chapter C.
26. Another of the commitments Russia entered into was to adopt a new law on the freedom of religion. Such a new law has indeed been adopted, but unfortunately, it seems to fall rather short of Council of Europe standards on the matter. A motion for a resolution on the new Russian law on religion has been tabled by Mr Atkinson and others and referred to the Committee on Legal Affairs and Human Rights for report, which is now dealing with the matter.
27. The new law on freedom of conscience and on religious associations entered into force on 1 October 1997, after having been revised following a presidential veto of the first version. While the law does provide adequate protection for an individual’s right to profess or not to profess the religion of his choice, it contains some other provisions which seem to be inconsistent with international standards and with Russia’s international treaty obligations. In particular, the law establishes two categories of religious associations: the more privileged “religious organisations” and the less privileged “religious groups”. Religious groups, unlike religious organisations, do not have the status of a legal person, and do not enjoy the rights associated with this status, such as owning property, concluding contracts, and hiring employees. In addition, they are explicitly barred from operating schools or inviting foreign guests to Russia. Religious organisations have these rights, but to be recognised as such must be either classified as a “traditional” religion or must have existed as a registered religious group on Russian territory for at least 15 years, the latter to be certified by the local authorities. In fact, with the entry into force of this law, a third category of religious associations was created: religious groups registered with the authorities on that day (for less than 15 years) who already enjoy the status of a legal person may keep this status and the associated rights, provided they re-register every year with the authorities9. These provisions may lead to discriminatory treatment especially of non-traditional religions, thus undermining the principle of religious equality before the law. A revision of some of these provisions may be called for to ensure compliance with Council of Europe standards. The views of the Russian parliamentary delegation with regard to this law are clearly stated in Appendix IV.
C. Reform of the prosecutor's office
28. Upon accession to the Council of Europe, Russia committed itself to reform its prosecutor's office, which, at the time of Russia's accession to the Council of Europe, remained largely unreformed and based on the Communist "prokuratura"-structure. No progress seems to have been made on this point: the role and functions of the prosecutor's office are enshrined in a law adopted in November 1995 that has not been amended since. In practice, this means that, in court, the equality of arms between the prosecution and the defense is not always guaranteed. Outside of court, it means that the prosecutor's office has powers which in most Council of Europe member states have been transferred to other bodies, such as administrative courts, ombudsmen institutions or judges: the supervision over the legality of all administrative acts, the supervision over the observance of human and civil rights, supervisory functions in places of detention, and the issuing of arrest warrants. In accordance with Article 5 paragraph 3 of the European Convention on Human Rights (ECHR), the new draft Code of Criminal Procedure foresees that the latter function of issuing arrest warrants will finally be transferred to judges, where it belongs.
29. The situation is not quite as clear as far as the right to defend human rights and other rights of citizens are concerned. Although a law on the Office of the Human Rights Commissioner has been adopted, the prosecutor's office considered, during our visit in November 1997, that it should not lose its right to defend human and other rights of citizens because it provides an efficient service, free of charge, to millions of citizens each year in this field, who would not be able to afford the services of a lawyer, or court fees, or who do not want to wait until their case comes to court, a service which the prosecutor’s office considers the Human Rights Commissioner will not be able to perform for lack of equivalent structures. In principle, the function of supervising the administration should clearly belong to administrative courts, and the function of defending human rights should equally clearly belong to an institution independent from the prosecutor's office, such as the Human Rights Commissioner, an Ombudsman or another similar institution. An institution whose primary function is to accuse persons (e.g. of a criminal offense), and thus fights, a priori, for the interests of the state, cannot fight against the state at the same time; nor can an institution which orders the arrest of a person at the same time ensure that the rights of the arrested person are not violated.
30. However, in view of the institution-building still going on in the Russian Federation at the moment, it might be premature to deprive the prosecutor’s office of the function of supervising the administration at this point in time. It might be acceptable for the current practice to continue until a more appropriate institution can take these functions over without hindering the effectiveness of the service. The relevant responsibilities for protecting the human rights of citizens should be transferred from the prosecutor’s office to the Human Rights Commissioner. In this respect the remarks of the Russian parliamentary delegation, that it is envisaged (in the long-term) to establish a system of administrative courts and give them the authority to supervise the administration, is encouraging.
31. During the current transitional period when it is not yet sure how effective the powers of the Human Rights Commissioner will be in particular with regard to military structures, the drive of the military prosecutor’s office launched in 1997 to encourage conscripts, soldiers and officers alike to register complaints with prosecutors on ill-treatment in the army and other military structures (especially the troops of the Ministry of the Interior) is to be welcomed.
D. Abolition of the death penalty and immediate moratorium on executions
32. Upon accession to the Council of Europe, Russia committed itself to impose a moratorium on executions "with effect from the day of accession", and to abolish the death penalty within three years. In January 1997 the Assembly held an urgent debate on this particular commitment of the Russian Federation, on the basis of a report submitted by Mrs Wohlwend, Rapporteur on the abolition of the death penalty, on behalf of the Committee on Legal Affairs and Human Rights. The Assembly was able to establish during the debate that while 53 executions took place in 1996, in flagrant violation of this commitment, an unofficial moratorium on executions was, however, put into place by President Yeltsin on 2 August 1996.
33. We were very heartened to find out during our visit in November 1997 that this de facto moratorium, instituted by the President by way of no longer refusing requests for pardon, is holding, no doubt also due to the efforts of the Presidential Pardon Commission and its valiant Chairperson, Mr Pristavkin. However, in view of the fact that the Committee on Legal Affairs and Human Rights is demanding the imposition of a de jure moratorium on executions in Ukraine, albeit for different reasons (the de facto moratorium not having been respected by the Ukrainian authorities), it seems appropriate to urge the Russian authorities (the Russian parliament or the President) to take the necessary action to explicitely legalise the moratorium on executions in the Russian Federation, too. The signature of Protocol No. 6 to the ECHR abolishing the death penalty in times of peace on 16 April 1997 was the first step in the right direction in this regard, which in itself already constituted a legal commitment not to carry out executions according to the Vienna treaty system.
34. A draft law introduced by the Russian deputy Mr Borshchev which would have made the moratorium on executions official, thus ensuring compliance with Russia's commitment to the Council of Europe, was rejected by the State Duma on 14 March 1997 with 176 votes against, 75 in favour and 6 abstentions. Mr Dzasokhov, the former Chairman of the Russian parliamentary delegation to the Council of Europe, informed us that another draft law with the same content had just been tabled in the State Duma by Mr Borshchev and six other deputies, all from different political factions. He was more optimistic as to the passage of this new draft law. We hope that he is right. Currently, the law is awaiting a costing estimate by the Ministry of the Interior, before it can be debated in the Duma. We hope this estimate will be forthcoming soon, and that the cost of keeping alive the roughly 700 prisoners sentenced to death will be seen in relation to the cost of keeping more than 300.000 prisoners in pre-trial detention before their guilt has been proven. The actual cost of abolishing the death penalty is minimal in comparison, and should not be used as an excuse to delay the passage of this law any longer.
35. The reason why this is so important is that, as of 17 March 1997, 688 prisoners10 were still held on death row11, and are thus in imminent danger of execution should the moratorium on executions not be respected, for example for political reasons (according to opinion polls, the majority of the Russian population favours the retention of capital punishment). The new Criminal Code reduced the number of capital crimes from formerly 28 to 5, but the impact of this change will be rather limited, since none of the prisoners condemned to death in recent years were condemned on the basis of the 23 articles that no longer carry the death penalty. The great majority of all death sentences is handed down for murder in the first degree.
36. The seriousness of a potential resumption of executions in Russia is aggravated by the fact that the rule of law is still very weak in the country, and the chance of judicial errors happening is therefore much higher - one Russian Duma deputy, Mr Borshchev, estimated that such errors are committed in 30% of capital cases. The risk of innocent people being put to death is thus simply far too high - and posthumous rehabilitation is a sorry compensation. This is why it is so imperative that – irrespective of public opinion - Russia go on respecting its moratorium on executions, it be made official by Presidential decree or parliamentary law, Protocol No. 6 to the ECHR be ratified soon and the death penalty be abolished completely in the next year, all according to Russia's commitments.
E. Prosecution of human rights violations in Chechnya
37. Upon accession, Russia committed itself to ensure that those found responsible for human rights violations will be brought to justice, notably in relation to events in Chechnya. There seems to be very little progress on this front. Despite the fact that human rights violations committed in the last years (many of them following Russia's accession to the Council of Europe, in the first half-year of 1996) against the Chechen civilian population - extortion, robbery, looting, arson, rape, torture, and even murder - are widely documented12, also by our own Sub-Committee on Human Rights, the Russian and the Chechen authorities seem to be doing very little, if anything, to bring those responsible to justice.
38. Judicial proceedings instigated by the Russian military prosecutor's office13 number approximately 2000, only 147 of which were related to crimes against the civilian population. Out of the latter category, only 23 persons were convicted, although some cases may still be pending. Of course the current situation in Chechnya, which is characterised by widespread unlawfulness and the unacceptable imposition of Islamic Sharia-law, is not helping in clearing up these crimes. It can only be hoped that the co-operation between the newly-created Chechen prosecutor's office and the various Russian law enforcement bodies will be more fruitful in the future, so that at least some of those Russian servicemen responsible for the gravest atrocities committed in Chechnya will still be brought to justice. However, hope of that is slim, especially in view of the (politically motivated) amnesty the State Duma granted on 12 March 1997.
39. Nevertheless, this commitment concerning the prosecution of human rights violations in Chechnya is very important. During the Chechen conflict, tens of thousands of Chechen civilians died and many more were wounded; most of these deaths were the result of indiscriminate or direct attacks upon civilians by the Russian army. Evidence of maltreatment and torture during the conflict, especially in the so-called filtration points, is bountiful, not to speak of the "ordinary" crimes of a badly disciplined army enumerated above (looting, rape, etc.). It is wholly unacceptable that the instigators and perpetrators of these crimes, which number in the thousands, should go unpunished. The Assembly must demand that this particular commitment be taken seriously by the Russian authorities, and that those responsible for human rights violations in Chechnya be brought to justice immediately.
40. Human rights violation, atrocities and violation of international humanitarian law were also committed by Chechen fighters during the conflict (e.g. terrorist attacks, attacks on civilians and hospitals, and use of civilians as "human shields"). These violations also need to be investigated most urgently, and the guilty brought to justice.
F. Conditions in prisons and pre-trial detention, and reform of the penitentiary system
41. Russia committed itself upon accession to improve conditions of detention in line with Recommendation R (87) 3 on European prison rules; in particular the practically inhuman conditions in many pre-trial detention centres were to be ameliorated without delay. Russia also committed itself to transferring the responsibility for the prison administration and the execution of judgments to the Ministry of Justice as soon as possible, as well as to bringing legislation in the field in line with Council of Europe standards and principles.
42. President Yeltsin has just signed a decree, according to which the transfer of the responsibility for the administration of all prisons and pre-trial detention centres currently run by the Ministry of the Interior (and, to a very small extent, the federal security service FSB) is to be transferred to the Ministry of Justice by 31 December 1998. This is a most welcome development. The President has created a commission under the chairmanship, at the time, of Prime Minister Chernomyrdin and the participation of the Ministers of Interior and Justice, MM. Kulikov and Stepashin, as well as of the Prosecutor-General, the Finance Ministry and experts to put this decree into effect. The commission will, inter alia, prepare the revision and amendment of existing laws to be submitted to the State Duma for adoption, make an expert analysis of the current status of the prison system and review the over-all concept of the administration of the system.
43. Further big changes in the administration of the prison system will only be attempted by the Ministry of Justice after the transfer of power has been completed, in line with the step-by-step approach foreseen by the Presidential decree setting the deadline of the year 2005 for the full reform of the Russian penitentiary system. The first step is to be the transfer of the administration of the system to a civil authority, the Ministry of Justice, without changing the status of the employees. The second step is to be a demilitarisation of the system under the aegis of the Ministry of Justice in 1999, ending with a change of ideology away from the “repressive” one currently governing the system, abolishing, for example, the idea of making profits for the State on the backs of the prisoners, and reducing the recourse made to custodial sentences and pre-trial detention. Thus, in practical terms, the second stage of the plan foresees the transfer of resources financing the penitentiary system to the central budget by the year 2000, as well as the construction of new detention centres and dwellings for staff. By 2005, as the third and last step, sick inmates are to be separated from healthy ones, and petty criminals from serious offenders; a system of vocational training for inmates is to be introduced, relations with family members and NGOs facilitated for prisoners. A network of correctional labour institutions is to be created in different regions, enabling prisoners to serve their sentence closer to their place of residence.
44. Some NGOs, such as the Moscow Center for Prison Reform, are worried that the transfer of authority over to the Ministry of Justice could lead to a worsening in the administration of the prison camps due to the weak personnel structure of the Ministry of Justice, preferring instead the decentralisation of the prison system with a partial transfer of responsibility to regional governors. They noted that the Presidential decree does not abolish the military ranks of the prison personnel and that the same people would be running the actual prisons and pre-trial detention centres, so that no improvement of the treatment of inmates could be hoped for. They are also afraid that the transfer will cost a lot of money which will be taken out of the – already much too tight – budget for the maintenance of the prison system.
45. While it has to be recognised, of course, that the transfer will indeed cost a lot of money and is only the first step in the demilitarisation of the prison administration, it is an important step in the right direction. Everyone who has ever been to a Russian pre-trial detention centre or prison camp will confirm that in any case, the current system has to be changed, since the situation cannot get much worse. The financial problem is more grave. For example, NGOs estimate that 10% of inmates of special tuberculosis colonies die each year for lack of sufficient food and medicine. In such circumstances, an administrative reform of the penitentiary system, however necessary it might be, must of course be financed not out of the budget for maintaining the prison system, but should be allocated special funds.
46. The success of penitentiary reform hinges on the ability and willingness of the lawmakers to substantially reform the outdated Soviet-type penitentiary system, as well as on sufficient funds being allocated for the purpose. Unfortunately, the conditions themselves in pre-trial detention centres and prisons alike seem not to have improved since Russia's accession to the Council of Europe. On the contrary, according to the testimony of non-governmental organisations in the field, they have actually considerably worsened 14. The main reason for this is overcrowding. In the last five years, the number of prisoners in Russia has increased by a ratio of 1.5, with their total number now exceeding one million. Pre-trial detention centres (SIZOs) and IVS (isolators of temporary custody) facilities alone hold more than 330,000 people.
47. The main reason for the overcrowding of the Russian penitentiary system is not necessarily lack of space, but the excessive application of arrest as a measure of restraint. Russia has the highest rate of imprisonment in the world: 690 prisoners per 100,000 of population, a rate that is 7 to 15 times higher than the rate in Western countries 15. The problem is especially acute in pre-trial detention, since many suspects are remanded for petty offenses (some even arbitrarily), suspects who in many Council of Europe member states would be freed on bail. According to official information, 65% of pre-trial detainees are not even sent to prison after trial, because the sanction imposed by the court is either non-custodial, or the length of the sentence is shorter than the pre-trial detention period already served. Due to the overloading of the criminal justice system (comprising a lengthy investigation period and often a long wait for court proceedings to start), the average time spent in pre-trial detention is 10 months; many suspects are kept in pre-trial detention for even longer periods of time, some of them illegally so.Hopefully, the adoption of a new Code of Criminal Procedure in the near future, modelled on European standards, might alleviate this particular problem.
48. This unnecessary overcrowding has very negative consequences. Each person in custody in SIZOs or IVS facilities is provided with less than one square meter of sanitary space on average (the official norm is 2.5 meters, soon to go up to 4 meters). In large cities, the average figure equals 0.5 square meters per prisoner in reality; cases of death from lack of oxygen are the result 16. According to a letter addressed to the President of the Assembly by the Director of the Moscow Center for Prison Reform, Mr Abramkin, dated 27 January 1997, the incidence of tuberculosis is 40 times higher in detention facilities than in the general population, and the death rate from the illness is 17 times higher. Other diseases abound as well: scabies, syphilis, diphtheria, pneumonia and even dystrophy. Rising rates of dystrophy and first cases of deaths from "overall body exhaustion" point to malnutrition and even hunger in some penitentiary institutions. The resulting conditions in pre-trial detention centres especially, but also in some prison colonies, can only be described as torture or inhuman and degrading treatment.
49. On 4 December 1997, the Russian parliament approved a proposal of President Yeltsin to put into effect an amnesty for 435,000 prisoners (petty offenders, women with children, etc.). However, only 35,000 of these prisoners will be released in the first six months of 1998; the term of imprisonment of 51,000 prisoners will be reduced. We welcome this amnesty as an important step to ease the overcrowding in Russian prison camps, but urge the authorities to put the amnesty into effect as soon as possible.
50. Allegations of ill-treatment or even torture during police custody and pre-trial detention, mainly to obtain coerced confessions, are still being made 17. The Russian authorities should intensify their efforts to protect detainees from such abuses by law-enforcement agents, and should ensure that offending guards and policemen are promptly brought to justice. There is also the need to foster a mentality change in the criminal justice system: the presumption of innocence does not seem to be automatically applied in the Russian Federation. Many policemen and prison officials consider a person guilty or charged as soon as he or she is remanded in custody, and the high conviction rates in Russian courts (especially when the defendant has made a confession) point to some judges and jurors sharing this view.
51. The Federal Law on Detention of Individuals Accused and Suspected of Crime, which entered into force on 15 July 1995, contains an important omission. It makes no reference to the right of an accused person to be brought promptly before a judge (required by Article 5 paragraph 3 of the European Convention on Human Rights), only to the right to have a court decide on the lawfulness of detention (Article 5 para. 4 of the Convention). This is not a sufficient guarantee. The law should thus be revised without delay to make it compatible with the ECHR. We hope that the protection from torture and inhuman or degrading punishment or treatment afforded by the state will considerably increase with the upcoming application of the Anti-Torture Convention, and that the observance of fundamental rights and freedoms in connection with arrest, custody and detention will be guaranteed by virtue of the entry into force of the European Convention on Human Rights.
G. Application of laws
● Freedom of movement and choice of residence
52. Russia committed itself upon accession to guarantee the effective exercise of the rights enshrined in Article 27 of the constitution and in the law on freedom of movement and choice of place of residence, and to cease to restrict international travel of persons aware of state secrets. Regrettably, the freedom of movement in the Russian Federation, though constitutionally guaranteed, is still often restricted by administrative officials practising the outlawed Soviet "propiska" (or residence-permit system), especially in the big cities such as Moscow and St. Petersburg. The international NGO Human Rights Watch/Helsinki highlighted this illegal 18 and unconstitutional, but nevertheless widespread practice, in a recent report.
53. According to this report and several other sources, including UNHRC, the Russian government continues to support restrictions on the freedom of movement as ostensible measures to keep public order and prevent housing discrimination. As a consequence the administration not only enforces obsolete mandatory residence registration (with violators incurring fines, illegal beatings or even eviction from their homes 19), but also resort to the detention and forced deportation of "vagrants and beggars" in accordance with Presidential Decree No. 1025. For example, the NGO Human Rights Watch/Helsinki reported that in the first five months of 1997, 1.3 million registration checks in private homes were effected by Moscow police alone. The enforcement of such shadowy propiska requirements also leaves the doors wide open for abuse by law enforcement agents. Allegations of extortion, or of discriminatory treatment of refugees, asylum-seekers or anyone who happens not to look like a Slav, abound. This is an unacceptable situation. The Russian government needs to clamp down on these illegal and unconstitutional practices in order to at last ensure complete freedom of movement in the Russian Federation. A shadow propiska system must not be tolerated any longer, especially in view of the Constitutional Court decision of 2 February 1998, which declared the government-issued regulations on registration unconstitutional, and thus invalid. Mr Luzhkov, Moscow’s mayor, then publicly declared that he would not abide by this court decision. Such behaviour is unacceptable. If a major political figure like Mr Luzhkov publicly refuses to submit to the authority of the highest court in the land, he should be held to account, lest the rule of law be entirely eroded by local officials.
54. On 18 July 1996, the State Duma adopted a law "On the System of Exit from and Entry into the Russian Federation and Entering the Russian Federation", which guarantees the freedom of international travel in general, though Article 15 (1) of the law also provides for the government to prevent some citizens from leaving because they allegedly had access to state secrets. The Russian NGO "Movement Without Borders" reports that it has registered one hundred such cases, which is not that high a number, considering that the figure stood at over 6.000 in 1994. If the NGO's figures are correct, Russia seems to be moving in the right direction in this field, although it would of course be desirable that all international travel restrictions be lifted, also for persons who allegedly know state secrets.
● Presidential decrees
55. Russia committed itself to revise Presidential Decree No. 1226 "on immediate measures for the protection of the population against banditry and other manifestations of organised crime" without delay upon accession. This decree, many provisions of which flagrantly violated both the Russian constitution and the European Convention on Human Rights, was finally abrogated by the President on 14 June 1997. No official figures are available on how many people suffered from the application of the decree, but the Moscow Center for Prison Reform estimates that in accordance with Decree No. 1226, 14,000 people were detained in 1994, and 20,400 in 1995, with the final figures for 1996 and 1997 probably being even higher.
56. On the same day, the President also abrogated Presidential Decree No. 1025 on "Immediate Measures for Strengthening the Legal Order and the Fight against Crime in Moscow and the Moscow Region", which followed in the footsteps of Decree No. 1226 and which originally entered into force on 10 July 1996. This decree provided for the detention of "vagrants" and "beggars" for 30 days and their subsequent exile outside the Moscow region, authorised by the prosecutor 20. Law enforcement agencies, not confined by any legal definition of the terms "vagrants and beggars", applied these measures to a wide range of people, including refugees, displaced persons, released prisoners, and persons without a residence permit for Moscow or the Moscow region, further contributing to the overcrowding of SIZOs and IVS facilities. It was the right decision to abrogate these two decrees.
57. The examples of Decrees Nos. 1226 and 1025 show that even a President who is in general committed to human rights, can at times make wrong decisions not in line with the Constitution of the Russian Federation and international treaties Russia is party to. A President who is not as committed to human rights and the rule of law might considerably abuse his powers in this respect. It is thus worrying that unofficial estimates of the numbers of Presidential decrees in relation to parliamentary laws lie at around 10:1. This is a question that we will have to look into more closely in the future.
III. The development of democracy
A. Introductory evaluation
58. For the first time in its history, Russia now has a Constitution, which was approved by referendum on 12 December 1993, and which enshrines individual and political freedoms, as well as separation of the executive, legislature and judiciary. In the years between 1996 and 1998, a presidential election took place democratically, as well as regional and local elections in several dozen subjects of the Federation. The Constitution is broadly similar to western European models, but confers very wide-ranging powers on the President, who is assisted by a steadily growing administration.
Under the Constitution, the President may:
- appoint the head of government with the State Duma's consent;
- determine the fundamental aims of the state's internal and external policy;
- dissolve the State Duma;
- declare a state of emergency;
- submit bills to parliament and issue decrees.
He is also commander-in-chief of the armed forces.
59. If abused, these powers could bring back a presidential dictatorship. The current President, Boris Yeltsin, wants dialogue with all the political forces in the country and intervenes to co-ordinate action when necessary. It was in this spirit that he recently addressed the State Duma for the first time. This directing role becomes a source of danger, however, if the President is for any reason unable to exercise it for an extended period.
60. Parliament consists of two chambers, and the State Duma is often in direct conflict with the President. The Federation Council, on the other hand, includes more of his supporters and is thus readier to compromise. It is clear that powerful conservative forces in the Duma are slowing the process of reform, reflecting the mistrust with which some sections of the public regard that process. These differences between government and parliament are perfectly normal in a parliamentary democracy - but should not block decisions which are vital for the country, e.g. adoption of the budget.
61. In contrast to the communist era, Russia now has a strongly federal structure, comprising 89 constituent entities with some measure of autonomy. This division of powers forms an effective barrier to domination by central government, but co-ordinating action by a strong and wise president is constantly needed to preserve the right balance between centralism and federalism. Several of the 89 entities enjoy extensive independence, especially Tatarstan, whose status might serve as a pointer for those negotiating Chechnya's future.
62. The former Communist Party of the Soviet Union (CPSU), which used to decide all major political questions, and direct and control public life, no longer exists. The one-party system has been replaced by a multi-party system, in which there is a whole range of different parties and electoral blocs, many of which are still amorphous movements, rather than established organisations with a national base. The rather confused party system is often marked more by strong individual personalities than binding party programs.
63. The once omnipotent Committee for State Security (KGB) has been replaced by the following security services:
- the Foreign Intelligence Service (SVR) for foreign intelligence activities;
- the Federal Security Service (FSB), which is actually the domestic secret service;
- the Presidential Security Service (SBP), which operates in the Kremlin;
- the Federal Agency for Government Communications and Information (FAPSI), the government's own communications network.
64. The various security agencies now have a full-time staff of over 1.5 million. The division of powers is complex, there is a general lack of co-ordination, and the absence of parliamentary control gives cause for some concern.
65. Within the legal system, legal reformers demand the complete fulfilment of the following objectives, which are inscribed in the Constitution:
- the courts to be fully independent of government and parliament;
- the law to take clear precedence over administration;
- the machinery of the law to shift its attention from punishing offenders to protecting rights.
66. The courts' position has been significantly strengthened by these reforms, marked by the adoption of a law on the judicial system on 23 October 1996, and the irremovability, immunity and independence of judges have become important issues - still more in theory than practice, alas, essentially because of the material problems they face. At the same time, the professional requirements applying to judges have become more stringent, and they are no longer allowed to belong to political parties. An effective constitutional court was one of the main aims of reform, and this is becoming steadily more important, in spite of many restrictions.
67. The main problem in establishing the rule of law has been the very steep increase in organised crime.21 The government's main problems in this area are due to the close links which exist between corruption and organised crime, which sometimes extends to the state authorities themselves. In addition, the serious fall in living standards means that people have to fight for a living, and this often leads on to crime. With the breakdown of values and authority, some people are looking to a "strong leader" to restore law and order - and this carries the risk of a return to dictatorship. Also worrying is the tendency of the courts simply to put accused and convicted offenders in prison. It is high time for them to make more use of alternative, non-custodial penalties.
68. The army, which now has around 1.7 million officers and soldiers, still plays an important role in Russian political life. There are plans to abolish compulsory military service and substitute a professional army by the year 2000. However, all the attempts at internal and external reform run into economic and social difficulties. Lack of money, problems with supplies, defeats in the field and a general loss of prestige are sapping morale and making people reluctant to perform military service. Furthermore ill-treatment of conscripts leaves thousands dead or injured every year. The recent efforts of military prosecutors to punish the perpetrators must be encouraged. The law on alternative service has still not been adopted. In spite of these problems, the political loyalty of the military leadership is scarcely in doubt.
B. Reform of the secret services
69. Upon accession, Russia committed itself to reform its secret services within one year from the time of accession, in particular removing the Federal Security Service's (FSB) right to conduct criminal investigations and run their own pre-trial detention centres. As outlined in sub-chapter F of Chapter II, the right of the FSB to run its own pre-trial detention centres is going to be withdrawn22 in accordance with Presidential Decree No. 1100 of 8 October 1997, since the responsibility for the administration of all pre-trial detention centres is going to be transferred to the Ministry of Justice by 31 December 1998.
70. The fundamental objectives of the activities of the Russian security services organs, as well as their powers and resources, are set out in the law "on the organs of the Federal Security Service in the Russian Federation". It came into force on 12 April 1995, and has not been amended since, although the Deputy Director of the FSB, Mr Ossobenkov, informed us during our visit in November 1997 that the FSB had submitted amendments to the law to the State Duma to make it more compatible with Council of Europe standards. The law invests the FSB both with powers that are undoubtedly connected with security (counter-intelligence, espionage, etc.) and with powers which are more connected with ordinary law: combating organised crime, corruption, smuggling, etc23. The FSB also took over the operational-search powers which used to belong to the KGB, such as the above-mentioned right to run its own pre-trial detention centres and criminal investigations, a fact the Assembly strongly rejected upon accession and forced the Russian authorities to commit themselves to alter.
71. It can be seen as a danger to democratic society and the rule of law that the security service FSB has many powers sometimes reminiscent of those of the old Soviet KGB, being supervised not by the courts, but - as in the days of the USSR - by the prosecutor's office. The experience of Mr Nikitin is a case in point: Mr Nikitin, an environmentalist accused of espionage and treason, was held, for months on end, in a St. Petersburg pre-trial detention centre run by the FSB, which also conducted the criminal investigations. The prosecutor's office ignored several complaints by Mr Nikitin that his human rights were being violated in prison (which was hardly surprising since it was the same prosecutor's office which had signed his arrest warrant), before finally ordering his release from pre-trial detention in December 1996, mainly on health grounds. Regardless of the merits of the criminal case against Mr Nikitin, it is clear that such cases should be investigated by the police and the prosecutor's office, and not by the secret service; and it is equally clear that a secret service should not have the possibility to keep people in its own custody.
72. Unfortunately, the FSB considers otherwise and is fighting hard to keep some of these KGB-prerogatives. In our opinion it would be best if the FSB's powers were limited to the purely security field and to the fight against international organised crime, while strengthening the personnel of the Ministry of the Interior to deal with national organised crime and corruption. We strongly recommend to the Russian authorities to withdraw the FSB's right to conduct criminal investigations24, and welcome the fact that its right to run pre-trial detention centres will be withdrawn soon.
C. Ill-treatment in the armed forces and the adoption of a law on alternative military service
73. Upon accession, Russia committed itself to adopting a law on alternative military service, as foreseen in Article 59 of the Constitution, and to reduce, if not eliminate, incidents of ill-treatment and deaths amongst servicemen in the armed forces outside military conflicts. The law on alternative service does not seem to have progressed much in the legislative process since its first reading on 14 December 1994, because it was rejected in the second reading. The Ministry of Defence is willing to consider taking other European countries' legislation as a model in the drafting process. The rejected draft foresaw the right to alternative service if this would run against a conscript's conscience, and alternative service would have been longer than military service (36 months for conscripts without higher education, 18 months for those having completed such education). The government would have determined the place of the alternative service (e.g. in hospitals or on construction sites), a provision the State Duma was not happy about. A new draft law on alternative service is to be discussed in the Duma soon, so that it can be hoped that its adoption is not too far off.
74. As concerns deaths and ill-treatment in the armed forces, the situation seems not to have improved very much, although the military prosecutor’s office is making considerable efforts to bring the offending soldiers and officers to justice. NGO representatives testified to the fact that every day, about 5 to 10 soldiers come to the Moscow office of the “Soldiers’ Mothers Committee” alone, soldiers who have been beaten, raped and otherwise cruelly ill-treated. Provisions in the army are so low that recruits regularly lose up to 20 kg of weight in the first month of service. The military prosecutor informed us that there were 76 suicides25 in the army in the first nine months of 1997. The military prosecutor’s office is currently sending large groups of prosecutors to special units all of a sudden. This has led to a sharp rise in complaints about ill-treatment to the prosecutor’s office, and thus also to a considerable rise in criminal proceedings. The prosecutor’s office is also setting up telephone hotlines for ill-treatment. These efforts are to be welcomed, but need to be further intensified. It would be a good idea to involve the Human Rights Commissioner, who was recently elected by the State Duma, in this field, or to consider electing a special ombudsman for the army26.
D. Protection of minorities
75. In accordance with its commitment upon accession to this effect, the Russian Federation has signed the European Framework Convention for the Protection of National Minorities, although it has yet to ratify it. We have heard no particular complaints that the Federation is not conducting its policy towards minorities on the principles set forth in Assembly Recommendation 1201 (1993), as it is bound to by virtue of paragraph 10 iv. of the Assembly's accession opinion. On the contrary, the recent adoption of a law on cultural autonomy for the smallest minorities (numbering less than 50.000 persons) can be seen as a very positive step. The rapid ratification of the Framework Convention for the Protection of National Minorities, which is said to be forthcoming, would complete this positive picture.
E. Guarantee of local self-government
76. Russia committed itself upon accession to sign and ratify within a year the European Charter of Local Self-Government, which it did on 5 May 1998. The effective exercise of the principles enshrined in the Charter seem, in general, not to pose a problem in the Russian Federation: Article 12 of the Constitution of 12 December 1993 lays down the principle of local self-government, albeit without specifying its scope27. The Constitution assigns to the Russian Federation and its component entities joint jurisdiction for "the establishment of general principles governing the organisation of the system of organs of state power and local self-government".
77. On 28 August 1995, on the basis of this jurisdiction, the law of the Russian Federation "on the general principles governing the organisation of local self-government in the Russian Federation" was adopted. It came into force on 1 September 1995 and introduced legal rules at three levels in the sphere of local self-government: the federal one, the level of each component entity of the Federation, and the level of each local authority 28. The principle of local self-government has recently been elaborated by the Russian Constitutional Court in its ruling of 24 January 1997 on the constitutionality of the law of the Republic of Udmurtia of 17 April 1996 "On the System of the Organs of Power of the Republic of Udmurtia". The ruling confirmed the right of the Republic to establish representative and executive organs of power on the third level (local authorities), but limited the competencies and rights of such organs, thus defending local autonomy. It can be hoped that the ratification of the European Charter of Local Self-Government will further promote the guarantee of local autonomy, in accordance with Russia's commitment to this effect. On this issue the Russian delegation has a slightly different opinion (see Appendix IV).
IV. Transition to a market economy29
78. The transition from a planned to a market economy is proving particularly difficult in a country with a population of 150 million. This is understandable, since 70 years of bureaucratic central rule killed individual initiative; up to 1985, private economic activity lead to severe penalties. Today, Russian economic policy faces serious problems:
- fragmentation of the former Soviet Union's homogeneous economic area;
- a sharp fall in production;
- increased economic crime;
- social tensions, due in particular to non-payment of arrears of salaries and pensions;
- serious environmental problems;
- dangerous nuclear plants.
79. When the Soviet Union collapsed, the close links which used to exist between raw materials suppliers, industry and energy distributors were largely severed. Despite the conclusion of several treaties
in the framework of the CIS, trade connections were cut and distribution networks dismantled, and the centralised economy was replaced by new, independent economic regions with different currencies. This left most CIS member states in a critical economic situation, and even the Russian Federation had to cope with a 40% drop in GDP between 1991 and 1994. After a period of disillusionment and rethinking, the need for closer economic co-operation is now acknowledged.
80. From 1991 on, the monetary economy of the former Soviet Union was seriously disrupted, generating dangerous inflation.This was, in the view of the rapporteurs, due to sharp disagreement on financial policy between the representatives of the subsidised state enterprises and the free market reformers. The partisans of a restrictive monetary policy, coupled with reform of the state budget, seem gradually to have carried their point. Monetary policy indicators now reflect positive trends, and inflation has fallen significantly since 1995. The issue of a new ruble (with three zeroes less) on 1 January 1998 follows the same aim.
81. Privatisation, the keystone of the market economy, was not tackled until 1992, in addition without great success, since many directors of the major state enterprises, representatives of the military-industrial complex and collective farm bosses resisted the change for reasons of self-interest. Despite open opposition, privatisation continues and many state enterprises are now in private hands. Along the way, a number of new businessmen have been able to acquire personal control of huge sectors, monopolies being the danger here, particularly in the print media.
82. Russia's export trade is still often a matter of raw materials leaving the country in exchange for hard western currency. It is important to note, however, that direct foreign investment can save companies on the verge of bankruptcy and turn them into going concerns. Russia still attracts little private capital, for the following reasons:
- the international money markets are made distrustful by a certain unreliability in the matter of payments;
- ownership conditions for foreign entrepreneurs have not yet been properly regulated;
- there are insufficient incentives for investment in private sector businesses;
- not enough is done to combat organised economic crime.
83. Conversion from a planned economy faces special problems when the market economy is also expected to improve social conditions. The widespread poverty and the precarious situation of orphans and old people are conspicuous. More than 32 million people live below the poverty line.Wages and pensions are a pittance, particularly in the public sector, and are often paid months in arrear. Social security is gradually disappearing and its share of the budget is plummeting. It is vital to take action here, and particularly to cut certain prestige-linked expenditure, since only economic revival will increase the state's tax revenue, allowing it to improve social welfare as well.
84. The country's environmental difficulties date from the Soviet period, when protection of nature and the environment were virtually meaningless. Despite the adoption of a number of legislative acts, the most pressing problems at present are:
- radioactive contamination of nuclear test areas;
- elimination of liquid and solid nuclear waste;
- poor maintenance of nuclear weapons systems;
- the use of pesticides, fertilisers and defoliants;
- the risk that eco-systems in large inland areas of water may collapse;
- inadequate sewage systems in many towns and cities.
85. It is understandable that social and economic problems should be given priority at present, relegating ecological issues to the background. The hope remains that attitudes will change and that protection of the environment will carry more political weight in future.
86. The nuclear power stations from the Soviet era still present special dangers. Even today, an accumulation of technical and human errors could produce a second Chernobyl, with all its disastrous consequences. The Russian government is aware of this danger, since it has issued a series of decrees, demanding safety improvements in nuclear plants. However, financial difficulties rule out all but urgent measures, and thorough reorganisation would seem impossible without western aid.
87. The list of problems seems longest in the economic field, because this is where structural change is most difficult. There is no doubt, however, that the country, which is rich in mineral resources, will take off in economic terms, if it gets the political stability it needs as a basis. Foreign investment and technical co-operation with international organisations can effectively speed up development.
V. Areas of political and military tension
A. Within the country
88. When the political atmosphere in the Soviet Union became more relaxed from 1985 on, there was growing opposition to the central authorities among the non-Russian peoples. National minority movements sprang up, sparking an awareness of nationality, race and religion, and demanding greater autonomy. The Gorbachev government underestimated these demands, which intensified the conflicts and led to violent clashes.
89. The most serious conflict took place in Chechnya, where the Russian President decided, against the wishes of parliament, to send in the army and use force to solve the problem. Only massive bloodshed made the government realise that minority problems could ultimately be solved only by political means. The final status of Chechnya is to be settled after a moratorium of several years. In the meantime, free and fair elections have been held, returning the moderate Aslan Maskhadov as president. He, however, is finding it increasingly hard to resist the radical leaders who favour Islamic fundamentalism, unacceptable forms of implementing sharia law, including inhuman punishments such as public executions, and who let the kidnapping of foreigners happen. The main task at present is physical and moral reconstruction of the shattered country, which must take place, as far as possible, under Russian leadership with local and regional efforts, and with the help of the OSCE and the Council of Europe.
B. With neighbouring states
90. A first point of conflict arose in the Nagorno-Karabakh enclave, where cultural antagonism between Armenia and Azerbaijan led to clashes. Although the actual fighting ended with a cease-fire in May 1994, there are still no signs of lasting détente, in spite of international attempts at mediation. Only close co-operation between Russia and the other countries co-chairing the OSCE's Minsk Group (USA and France) can create the conditions for peaceful co-existence. It was with this in view that the three countries launched a joint initiative for settlement of the Nagorno-Karabakh conflict at the G8 Summit in Denver in 1997, but progress on the way to a settlement of the conflict seems to have stopped.
91. Another area of conflict lies in Georgia, where declarations of independence by Abkhasia and Ossetia in 1992 led to fighting. Russian intervention, in co-operation with the UN and the OSCE, achieved a cease-fire, but the situation remains unresolved. Here too, Russia 's influence will be decisive in arriving at a definitive solution.
92. There was also fighting in the Republic of Moldova, where the river Dniestr became a disputed border between Moldova and the breakaway region of Transnistria. A cease-fire was quickly achieved thanks to the energetic intervention of the Russian 14th Army under General Alexander Lebed. Here again, Russian help holds the key to a lasting political solution and to withdrawal of the 14th Army, which is now under way. Of course, special attention will have to be paid to monitoring the arms left behind, and co-operation between Russia, Ukraine and Moldova is proving vital here.
93. After the dissolution of the Soviet Union, there were also areas of political tension which did not, fortunately, lead to military conflict. Thus relations with the Baltic States have been more or less normalised by the withdrawal of Russian troops. However, they have progressively worsened in particular with Latvia due to the situation of the Russian-speaking minority in this country. The Russian delegation speaks of “large-scale human rights violations” in Estonia and Latvia, “oppression of the Russian-speaking population”, and a policy pursued by the leaders of these countries “to create mono-ethnic states”. The Monitoring Committee is preparing a report on Latvia. With regard to Estonia, however, the allegations of the Russian delegation are not substantiated. The Monitoring Committee should pay attention to this matter. Relations between Russia and Ukraine have become more constructive, especially since the signing, on 31 May 1997, of the friendship, co-operation and partnership treaty and various other agreements covering, in particular, the Black Sea fleet. Despite the creation of the Union between Russia and Belarus in April 1997, relations between the two countries are not tension-free, especially since President Lukashenko's anti-democratic policies often threaten the interests of Russian citizens, and particularly journalists.
94. The civil war in the CIS state of Tajikistan remains for the moment an insoluble problem, and the proximity of Afghanistan only makes intervention more hazardous. Attempts to achieve a cease-fire and peace have made some headway, thanks to effective co-operation between Russia and the international organisations.
95. Political developments in Russia reflect a progressive shift from a totalitarian political system to a liberal democracy based on democratic elections. In spite of the will to carry out reforms, setbacks happen regularly, as for example the violent conflict in Chechnya. This is the reason why Russia should become a country governed by the rule of law, in which law, and not force, should be the guiding principle, so that the respect of human rights becomes inherent.
96. The constitution adopted by the people guarantees the separation of powers and grants the President very wide competences. The political conflicts between the executive and the legislative are developing today in a fairer way and lead most of the time to solutions by consensus in decisive areas. Thus, the change of government in April 1998 took place without provoking a major political crisis. Likewise, the tensions between the central power in Moscow and the federated centres of decision in the 89 subjects of the Federation today produce positive results while the right to political freedom is respected.
97. The transition from a planned communist economy to a social market economy is still taking place in difficult conditions, which the unacceptable wage and pension arrears bear witness to. In this area, the tensions between the various population groups, the rising criminality and the growing damage to the environment are real problems. Only through the enshrining of the rule of law in society can the economy be privatised and made competitive in the world market. Next to the political and civil human rights, it is equally important for Russia to ensure respect for the economic, social and cultural human rights, as protected through the European Social Charter, the conventions of the International Labour Organisation (ILO) and the International Covenant on economic, social and cultural rights. The Russian Federation already adheres to the latter treaties, and it is hoped that Russia might soon ratify the European Social Charter.
98. The conflict areas in the former Soviet Union, in Moldova, Transcaucasia and Chechnya have calmed down and are subject to ceasefires. However, a final settlement of these conflicts is still a long way off, as internal political stabilisation and a policy leading to definitive refusal of confrontation are still missing. The peaceful values of the Council of Europe should be respected everywhere, so that the principle of peaceful co-existence generates a change in mentalities. In this respect, the Monitoring Committee must pay careful attention to try and avoid rising tensions between Russia, on the one hand, and Estonia and Latvia on the other.
99. In conclusion, it can be said that the Russian Federation has made considerable progress towards the fulfilment of its obligations and commitments. On the positive side, Russia has managed to adopt a new Criminal Code which is - to a large extent - compatible with international standards and the European Convention of Human Rights. The lawmaking process in general, though sometimes sluggish, seems to be progressing relatively well. Many other laws have been passed in the last few years, and it is not unrealistic to hope that the core of legislative reform still pending - such as the adoption of a new Code of Criminal Procedure - will be achieved in the period of another one or two years' time. The decision to transfer the responsibility on the administration of the penitentiary system from the Ministry of the Interior and the FSB to the Ministry of Justice is to be welcomed, as well as the recent drive of the military prosecutor’s office to investigate ill-treatment and deaths in the armed forces.
100. On the negative side, the Russian authorities have made few attempts to reform the prosecutor's office and the secret service in compliance with commitments entered into. Conditions in pre-trial detention centres and prisons have deteriorated since Russia's accession to the Council of Europe, due mainly to lack of funds, but also to mentalities yet unchanged, such as the over-free recourse to pre-trial detention and custodial sentences. Few of the many grave human rights' violations committed by the armed forces during the Chechen conflict have been investigated, let alone the guilty brought to justice. This is not only the fault of the Russian authorities, however; the current situation in Chechnya is hindering an effective investigation of abuses committed by both sides in the conflict.
101. Russia's record on the death penalty is split : 53 executions took place following Russia's accession to the Council of Europe, in flagrant violation of Russia's express commitment to introduce a moratorium on executions; such a moratorium has been practised unofficially since 2 August 1996. The signature of Protocol No. 6 to the ECHR abolishing the death penalty in times of peace, on 16 April 1997, is a very positive step, showing that Russia is taking this commitment seriously. Efforts are now being made by the government and by members of parliament to formalise the de facto moratorium and to push ahead with the abolition of the death penalty. The Assembly takes this particular commitment very seriously, as it demonstrated during the January 1997 part-session, so this is an area where no further violations will be accepted.
102. The Assembly also attaches particular importance to the rapid signature and ratification of Council of Europe legal instruments. It welcomes especially the ratification of the European Convention on Human Rights and the Anti-Torture Convention on 5 May 1998 and hopes that the framework Convention for the Protection of National Minorities will be given utmost priority by the Russian authorities, in compliance with commitments entered into.
103. However, one of the principal problems in the Russian Federation remains the insufficient application of legal standards. There are several reasons for this, ranging from missing legal codification and relatively poorly developed legislation over structures and mentalities inherited from the Soviet past to simple non-appliance of newly adopted rules and regulations. Considerable deficits remain also, as elaborated above, in the observance of human rights. It is of major importance that Russia ensure the just implementation of its laws not only in the centre, but across the whole country, including far-off subjects of the Federation. Help to the Russian authorities in achieving the aim to rectify these deficits is on offer from the Council of Europe. The Committee of Ministers should gear its assistance and co-operation programme towards the most sensitive issues, such as the amelioration of prison conditions and reform of the prosecutor's office and the secret services, and provide more financial resources.
104. When the cold war came to an end, the Soviet Union abandoned its imperialist ambitions in favour of a fruitful policy of co-operation between equal partners. Unfortunately, this constructive co-operation has not been problem-free, and a change of heart, leading to fresh confrontation, cannot be ruled out. It is vital to ensure that the co-operation policy pursued so far does not give way to renewed confrontation. This means that the Council of Europe must, as a platform shared by the potential partners to conflict, play an active part in the efforts made to promote constructive developments. The Council of Europe must not restrict itself, within this partnership, to monitoring exercises, but must also provide guidance and help to strengthen institutions. The comments made by the President of the Assembly, Leni Fischer, on 28 February 1996, should be borne in mind here: "Given the difficult situation in Russia, we cannot expect democratic reforms to be carried out with ease. Not admitting Russia to the Council of Europe would have had devastating psychological consequences. Acceptance of Russia on the other hand gives the Council a vested right to supervise its progress towards democracy and rule of law, applying gentle pressure."
of the fact-finding visit to Moscow and Grozny
(10 - 13 November 1997)
Rapporteurs: MM. Bindig and Muehlemann30
Sunday 9 November 1997
Arrival of the delegation in Moscow
Monday 10 November 1997
9.00 am Meeting with Mr A. Dzasokhov, Chairman of the Russian delegation to the Parliamentary Assembly
11.00 am Meeting with Mr I. Rybkin, Secretary to the Security Council
3.00 pm Meeting with Mr S. Stepashin, Minister of Justice
6.00 pm Meeting with representatives of NGOs active in the field of human rights
Tuesday 11 November 1997
8.00 am Departure to Grozny (Chechnya)
12.00 noon Meeting with the "Parliament"
2.00 pm Meeting with Mr R. Thorning-Petersen, Head of the OSCE Assistance Group for Chechnya
3.00 pm Meeting with Mr Sh. Basaev, acting Vice-Prime Minister
4.30 pm Meeting with Mr V. Arsanov, Vice-President of Chechnya
6.00 pm Return to Moscow
Wednesday 12 November 1997
9.00 am Meeting with Mr O. Ossobenkov, first Deputy Director of the Federal Security Service
10.30 am Meeting with Mr A. Kulikov, Minister of the Interior
12.00 noon Meeting with Mr A. Pristavkin, Chairman of the Presidential Pardon Committee
1.30 pm Working lunch with Mr A. Dzasokhov, Chairman of the Russian delegation to the Parliamentary Assembly, and other members of the delegation
3.00 pm Meeting with Mr I. Ivanov, Vice-Minister of Foreign Affairs
4.30 pm Meeting with Mr S. Kehlerov, Deputy to the Prosecutor General
7.00 pm Meeting with Mr E.J. von Studnitz, Ambassador of Germany
Thursday 13 November 1997
Departure of the delegation.
of the delegation of the Federal Assembly of the Russian Federation to the Parliamentary Assembly of the Council of Europe on the preliminary draft report concerning the Russian Federation by the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe
Letter from the Chairman of the Delegation of the Federal Assembly of the Russian Federation to the Chairman of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe
April 23, 1998
Dear Mr de Marco,
I have the honour to present the Comments of the Delegation of the Federal Assembly of the Russian Federation to the Parliamentary Assembly of the Council of Europe to the preliminary draft report of the Committee on the Honouring of obligations and commitments by member states of the Council of Europe on "the Russian Federation".
The delegation of the Federal Assembly of the Russian Federation to the Parliamentary Assembly of the Council of Europe regards the monitoring by the Parliamentary Assembly of the honouring of obligations by accepted Council of Europe member states upon their accession to the Council as one of the key aspects of the Parliamentary Assembly's activities. The monitoring procedure is intended to promote the affirmation on the European continent of the Council of Europe's standards in the fields of democracy, respect for human rights and the rule of law. It is also an instrument for enhancing the efficiency of the Parliamentary Assembly's activities and strengthening co-operation between the Assembly and national parliaments.
In the opinion of the delegation of the Federal Assembly of the Russian Federation, it is a matter of fundamental importance that the monitoring procedure should be carried out objectively and in the spirit of co-operation and non-discrimination as outlined in the Parliamentary Assembly's Resolution 1115 (1997). We also fully support the basic principles drawn up by the Monitoring Committee and set forth in the draft resolution on the results of the first year of the Committee's activities, including the principle of a non-confrontational, long-term approach and the need to take account of the geopolitical context and domestic concerns of the states subjected to the monitoring procedure. Methodologically, to our minds, an analysis of the complex, multifaceted problem of implementing the Council of Europe's standards in Russia should not only be carried out in terms of comparing Russian realities with the concrete experience of individual states of western Europe. It is no less important to consider to what extent measures taken by the leadership of a state meet the need for democratic changes and an improvement in the situation concerning human rights, including social rights.
The monitoring of Russia has already been under way for five years — first, as an applicant country holding special-guest status, and then, since 1996, as a full member of the Council of Europe. We appreciate the contribution by the rapporteurs on Russia — Mr R. Bindig and Mr E. Muehlemann, as well as the former rapporteur, Mr D. Atkinson — on examining the situation in Russia and preparing a series of reports, including the Monitoring Committee's report that is now under consideration. The document describes Russia's achievements in applying the Council of Europe's principles as well as the problems being solved by our country during the reform process and the objective obstacles impeding change. We cannot agree with all the contents of the report. In such documents we think it advisable to avoid politicised assessments or subjective conclusions based not on an examination of documents but on particular facts or opinions of individuals that often fail to reflect the real situation in the country concerned. A more balanced and objective assessment of the activities of the various branches of power is also desirable.
On the whole, however, the work on the report, including the rapporteurs' numerous meetings in Russia, and on the comments concerning the report was undoubtedly useful and will help to strengthen mutual understanding and co-operation between the Council of Europe and the Russian Federation.
The observations set out below have been compiled on the basis of the opinions of the State Duma committees as well as the Administration of the President of the Russian Federation, the Government and several ministries and departments of the Russian Federation which were acquainted with the draft report (viz the Ministries of Foreign Affairs, Justice, the Interior, and Nationalities and Regional Policy, the Federal Migration Service, the Office of the Prosecutor General, the State Committee on Environment and the Supreme Court of the Russian Federation). The comments reflect the point of view of the majority of the members of the delegation of the Federal Assembly of the Russian Federation to the Parliamentary Assembly. At the same time, certain members of the delegation have different opinions on some issues covered by the report. We express the hope that these observations and comments will be taken into consideration during the preparation of the final version of the report.
Section II. The rule of law
A. Introductory evaluation
Paragraphs 6-8. In the Russian Federation there are different points of view on the processes that have been under way in the country since 1985, and these are freely expressed. In accordance with Article 13 of the Constitution and in full compliance with the Council of Europe's principles, ideological and political pluralism as well as a multiparty system are recognised in Russia. The activities of public associations and political parties, including those in opposition, are carried out on the basis of the Constitution and federal laws. The State Duma has been democratically elected and, like the parliament of any country, reflects the population's political preferences. It is not considered altogether reasonable to relate the political composition of a parliament to the problem of ensuring the rule of law.
Legislative activities in the Russian Federation are based on the principles and standards of the Council of Europe, and this has especially been so since 28 February 1996.
Paragraph 9. The military actions in Chechnya ceased on 31 August 1997, after the so-called Khasavyurt agreement was signed.
Paragraph 11. We think that the question of the rule of law must not only be linked to individual “reformers”. The question is to what extent the policy pursued by the leadership of the country is appropriate to the task of establishing the rule of law, and to what extent the authorities are consistent in the implementation of this policy.
Paragraph 12. The state bodies as well as the majority of deputies of the Federal Assembly, both chambers of which have adopted the law on freedom of conscience and on religious organisations by a constitutional majority, do not share the regret of the rapporteurs about the adoption of this statute and do not consider it to be of a discriminatory character. For more details, see the comments regarding paragraphs 26 to 27.
A comment is called for regarding the rapporteur's assertion that the Moscow municipal authorities use “corrupt police officials to apply decrees which the Constitutional Court has actually declared invalid”, especially in connection with the problem of refugees and displaced persons. Their status is regulated by the federal laws “On Refugees” and “On Forced Migrants” respectively, not by decrees, and falls within the competence of the Federal Migration Service. Persons undergoing the procedure of being recognised as refugees have the appropriate documents, and by law they must be granted a number of benefits, including food and communal services in temporary accommodation centres; they also have the right to receive a financial grant, medical aid and assistance with vocational training. The Moscow authorities take the measures provided for in federal laws to alleviate the situation of refugees and displaced persons, including the supply of accommodation and means of subsistence. In so far as this section deals with the problem of “ordinary” migration to large cities and with registration, reference should be made to the comments below.
Paragraph 13. We would like to point out that, for the reasons beyond the control of Russia, the decision by the Assembly on the drawing up of its own programme of co-operation with Russia, as envisaged in paragraph 8 of Opinion No. 193 (1996) regarding Russia’s application for admission to the Council of Europe, has not been fully implemented. We believe the drawing up of such a programme to be useful.
B. Ratification of Council of Europe conventions and legislative reform
Paragraphs 14-15. The Russian Federation has ratified the European Convention on Human Rights, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the European Charter of Local Self-Government.
The federal law on ratification of the Convention on Human
The federal law on the ratification of the European
Convention for the Prevention of Torture and Inhuman or Degrading Treatment of
Punishment, of 26 November 1987, and Protocols No. 1 and No. 2 of 4 November
1993, was adopted by the State Duma on
The federal law on ratification of the European Charter of Local Self-Government, of 15 October 1985, was adopted by the State Duma on 20 March 1998, approved by the Federation Council on 1 April 1998 and signed by the President of the Russian Federation on 11 April 1998.
The federal law on ratification of the Framework Convention for the Protection of National Minorities, of 1 February 1995, was transmitted by the State Duma to the President of the Russian Federation for approval of the ratification declaration on 6 March 1998.
Paragraph 16. Among the laws listed in Opinion No. 193 (1996) and in this paragraph, Russia has adopted the Criminal Code, the Civil Code Parts I-II, supplements to the law “On the Prosecutor’s Office of the Russian Federation”, the Code of Criminal Procedure, the Code of Arbitration Procedure, the federal constitutional law “On the Office of the Commissioner of Human Rights”, the law “On Freedom of Conscience and Religious Organisations”, and the law “On Detention of Persons Suspected or Accused of Crimes”.
In addition, the federal constitutional laws “On the Constitutional Court of the Russian Federation”, “On Arbitration Court in the Russian Federation”, “On the Judicial System of the Russian Federation”, and “On the Government of the Russian Federation” as well as the federal laws “On State Protection of Judges and the Law-Enforcement and Control Organ Officers”, “On Supplements to the law 'on the Status of Judges in the Russian Federation'”, “On Operational — Investigation Activities”, “On Judicial Appeals Against Actions Violating Civil Rights and Freedoms”, “On Additional Guarantees of Social Protection for Judges and Officials of the Judicial System of the Russian Federation”, “On the Execution of Court Decisions” and “On the Judicial Department of the Supreme Court of the Russian Federation” were adopted in recent years. The draft Code of Criminal Procedure and the draft Code of Administrative Offences are about to be given a second reading. The draft law “On National Minorities” is to receive a first reading by the State Duma. The law “On Assemblies, Meetings, Demonstrations, Processions and Picketing” has been adopted, but has been rejected by the President of the Russian Federation.
Paragraphs 18-19. The new Criminal Code, like any other law in this area, is not, of course, ideal, and the Russian lawyers as well as the deputies, are aware of its shortcomings. However, the critical remarks in the report are by no means fully shared in Russia. In particular, the principle of humanity in the criminal law, as we see it, should be primarily related to ensuring the safety of law-abiding citizens, as well as to promoting the fundamental rights of persons on whom punishments are imposed in accordance with the law. The criticism contained in paragraph 18 concerning Article 7 of the Criminal Code is justified only in relation to the conditions in pre-trial detention centres. We would like to point out that the situation in these centres is not directly connected with the Criminal Code as they are not facilities for the execution of criminal sentences. Conditions and procedures regarding pre-trial detention are governed by the federal law “On the Detention of Persons Suspected or Accused of Offences”. This statute provides that detention shall be carried out in accordance with the principles of the rule of law, the equality of all citizens before the law, humanity, and respect for human dignity. The severe conditions in pre-trial detention centres and the observed cases of harsh treatment of detainees are not due any defects in the law but rather to inadequacies in its implementation. For more details, see the comments in the section concerning conditions of detention in penitentiary institutions.
The rapporteurs consider the penalties for the preparation of criminal activities or for attempts to carry out such activities, as specified in Article 66 of the new Criminal Code, to be excessively severe. We would like to point out that this article simply prescribes the upper limit for the penalties that may be imposed for these activities, and does not oblige courts to impose exactly those non-completed offences. In practice, Article 73 of the Criminal Code (suspended sentence) and Articles 75 to 77 of the Criminal Code (discharge from criminal liability) are fairly often applied in such cases.
The draft report contains a not altogether accurate interpretation of the provisions of Article 42 of the Criminal Code of the Russian Federation, relating to criminal liability for committing acts in pursuance of orders or instructions. The answer to such a legal situation is not to consider such acts criminal and to discharge the person who committed them from criminal liability, but rather to regard such acts as non-criminal. At the same time, the claim that such a solution encourages an irresponsible attitude is not warranted by the law. It is the person who gave the illegal order or instruction that bears responsibility for the damage caused in such cases, but if the perpetrator commits a deliberate offence in pursuance of an illegal order or instruction, he may be held liable on general grounds.
Articles 37, 38 and 42 of the Criminal Code, concerning self-defence, apprehension of a criminal and execution of an order respectively, are consistently based on the approach that liability for excessive action may arise only in cases where such action was deliberate.
This matches one of the basic principles of the new Russian criminal legislation, in accordance with which an act committed through negligence is punishable only if this is specifically prescribed by the Criminal Code. As to the assertion that gross negligence in the course of self-defence or apprehension is not punishable, Articles 108 and 114 provide for criminal liability in respect of excessive forms of self-defence. In addition, the Criminal Code addresses such matters as abuse of official powers (Article 285), exceeding of official powers (Article 286), initiation of criminal proceedings against innocent persons (Article 299) and criminal liability for illegal arrest and detention (Article 301).
Paragraph 20. We would like to make some comments with respect to the Criminal Code articles that provide for the death penalty. In accordance with the established practice and the interpretations of the plenary Supreme Court, an attack on the life of a state or public figure or on the life of a militia officer or a judge is regarded as attempted deliberate murder or deliberate murder of the person concerned. Under Article 56 of the Criminal Code, the death penalty or life imprisonment cannot be imposed for attempt to commit a crime. Thus, the death penalty as specified in Articles 277 and 295 of the Criminal Code may be imposed only for the aggravated forms of murder for which it is prescribed in the basic provision (Part 2, Art. 105). Moreover, death penalties imposed after the moratorium was introduced and Protocol No. 6 to the European Convention of Human Rights was signed are not executed.
Paragraph 21. We regard as somewhat improper the attempt by the rapporteurs to analyse the draft Code of Criminal Procedure when the text thereof, on their own admission, was not available to them. References to the opinions of “legal experts” not directly involved in the preparation of the report are an insufficient ground for drawing a conclusion, for example, on the preservation “a neo-inquisitional model” of criminal procedure. The draft Code of Criminal Procedure was adopted by the State Duma at a first reading in June 1997. The State Duma Committee on Legislation and Legal Reform received about 3 000 amendments to the text (some of which, of course, overlap) which are considered for the adoption of the text at a second reading.
Issues related to ensuring the conformity of the provisions of the new Code of Criminal Procedure with the universally recognised principles and standards of international law and with international treaties of the Russian Federation are continuously addressed both by working groups and by deputies of the State Duma who are members of the Duma's Committee on Legislation and Legal Reform.
The draft contains, in particular, provisions on the priority of universally recognised principles and standards, of international law, respect for the honour and dignity of individuals during criminal procedures, personal inviolability, respect for the home, privacy and correspondence, the presumption of innocence, equality before the law and courts, the independence of judges, equality of arms between parties, legally inadmissible evidence, the right of a suspect or an accused to be assisted by a lawyer, the transparency of legal proceedings and many other matters. Several provisions of the draft are aimed at developing the adversarial principle in connection with preliminary investigations criminal cases.
Work on the Code of Criminal Procedure is continuing. After the ratification of the European Convention on Human Rights the President of the Russian Federation proposed to the State Duma that an appraisal be made of the draft with the participation of the Council of Europe experts.
Paragraph 22. The concerns with respect to Article 184 of the Criminal Penitentiary Code of the Russian Federation have been taken into account: the law “On Amendments to Articles 184 and 185 of the Penitentiary Code” was adopted in December 1997, as a result of which, irrespective of appeals for pardon, death penalties may not be executed without the consent of the President of the Russian Federation.
Paragraph 23. The State Duma has not yet considered the draft Code of Civil Procedure. Work on this text will be carried out after completion of the basic major work on the Code of Criminal Procedure.
Paragraph 24. The federal law “On Assemblies, Meetings, Demonstrations, Processions and Picketing” was adopted several times by the State Duma, but rejected by the Federation Council and the President of the Russian Federation. It was adopted for the last time by the Federal Assembly in November 1995, but rejected by the President of the Russian Federation.
The law “On Public Associations” was adopted in May 1995. In 1997 the amendments regarding political associations were adopted.
The law “On Non-Commercial Organisations” was adopted in 1995.
The law “On Political Parties” was adopted by the State Duma in December 1995, but it was rejected by the Federation Council. A conciliatory committee of the Chambers was set up on this draft in November 1996.
This paragraph and paragraph 75 contain an inaccuracy concerning the law “On National and Cultural Autonomy”, which sets no limit to holders of the right to autonomy. The right to national and cultural autonomy belongs to all Russian peoples (ethnic groups), regardless of their numerical size.
The quantitative criterion of fewer than 50 000 people is used for allocating this or that community to the category of “indigenous small peoples residing in the territory of a traditional settlement”, which have several additional privileges (law “On Basic Principles of State Regulation of Social and Economic Development of the Northern Regions of the Russian Federation”).
Ninety-four national and cultural autonomies, including thirty-eight regional and one federal ones, were registered as of March 1998.
Paragraphs 26-27. The Russian Federation as a
member state of the Council of Europe endeavours to comply consistently with its
commitments regarding respect for the religious rights and freedoms of an
individual and a citizen. There were more than
The adoption of the federal law resulted from prolonged discussions in Russian society and a certain compromise between the country's largest religious organisations, the President and the Federal Assembly of the Russian Federation. The opponents of the law are keeping up an active campaign to discredit the law in the eyes of the world community. In our opinion, the authors of the draft report sometimes adopt a one-sided interpretation of individual provisions of the law.
In accordance with the universally established practice, the law takes account of particular features of the situation in Russia and of Russia's historical experience; it does not contradict any generally accepted international standards regarding the religious rights and freedoms of an individual. However, like any compromise, it does contain certain ambiguities and internal contradictions allowing of a broad interpretation of its contents.
In order to preclude an arbitrary interpretation of the law, the following documents have been produced and published: a commentary on the law, methodological recommendations by the Ministry of Justice of Russia regarding the application of the law, Rules for considering applications for the state registration, opening and closure of missions of foreign religious organisations in the Russian Federation. All these documents are based on the stipulation in paragraph 3 of Article 2 of the law, that nothing in legislation concerning freedom of conscience, freedom of religious practice and religious associations should be interpreted as limiting or infringing upon the rights of an individual and regarding citizen freedom of conscience and freedom of religious practice, as embodied in the Constitution of the Russian Federation and guaranteed by Russia’s international commitments.
In the view of the Ministry of Justice of the Russian Federation, it is impossible to agree with the rapporteurs that the law establishes two categories of religious associations: privileged ones (religious organisations) and less privileged ones (religious groups). This part of the law merely states and reflects the current situation as it actually exists.
State registration of religious associations is not obligatory under the law. Registration is carried out on a voluntary basis in order to enjoy the status of a legal person.
Registered religious associations are called religious organisations, and they have all the rights and obligations laid down in the legislation of the Russian Federation for legal persons.
Any religious association may operate even without state registration (which was prohibited during the Soviet period), and in this case is called a religious group. Religious groups have a right to religious worship, religious rites and ceremonies, a right to religious teaching and education and a right to carry out other activities that do not require the status of legal person. Such a practice exists in various forms is regulated by legislation throughout the world and is not discriminatory.
The rapporteurs' assertion that, in order to obtain the status of a religious organisation, a religious group must have been registered for at least fifteen years is not borne out by the provisions of the law. Under Article 9 of the law, in order to be registered an organisation must simply produce confirmation by a co-religionist centre of its confessional affiliation or provide evidence of its existence (not of its registration, as stated in the report) for at least fifteen 15 years. Any papers, including archives, newspaper articles, court decisions and affidavits, can be used in order to confirm such existence. Such a practice was not invented by Russia but exists in many countries of the world, in particular in Lithuania and Latvia, and is simply intended to protect society from dangerous dogmas.
The criticism concerning the rule in Article 27 of the federal law that religious organisations that have no confirmation from a religious centre or have not been in existence for fifteen years, are subject to annual re-registration and partial curtailment of their rights may be considered justified. Under Article 54 of the Constitution of the Russian Federation, a law establishing or increasing responsibility cannot have retroactive force. The Ministry of Justice specifically referred, in its methodological recommendations on the application of this law, to the shortcomings of this rule, and measures are now being taken to bring the rule into line with those of the Constitution of the Russian Federation are taken.
It should also be noted that a number of deputies share the criticism regarding this federal law and intend to submit amendments thereto for consideration.
C. Reform of the Prosecutor’s Office
It is scarcely possible to be in full agreement with the statement that no progress is being made in the reform of the Prosecutor’s Office. In our opinion, the Prosecutor’s Office cannot have a communist or a capitalist structure. The disintegration of the USSR and the proclamation of the sovereignty of the Russian Federation in its territory at the end of 1991 resulted in the USSR law “On the Prosecutor’s Office of the USSR” ceasing to be effective. The Supreme Soviet of the RSFSR adopted the law of the Russian Federation “On the Prosecutor’s Office of the Russian Federation” on 17 January 1992. This law constituted the first stage of the reform of the Prosecutor’s Office and made a number of substantial changes to its status and functions.
From 1992 to 1994 a new plan for procuratorial supervision during the transitional period was drawn up. It was subsequently reflected in the federal law “On Amendments and Supplements to the law of the Russian Federation ‘On Prosecutor’s Office of the Russian Federation’”, of 17 November 1995. These amendments and supplements resulted in significant alterations to the responsibilities of the Prosecutor’s Office and radically restricted intervention by the Prosecutor’s Office in the economic sphere. Social and political organisations and movements, as well as commercial and non-commercial organisations, with the exception of situations connected with respect for rights and freedoms of an individual and citizen, were fully excluded from the Prosecutor’s supervision.
At present, the Prosecutor’s Office of the Russian Federation is engaged in supervising the implementation of the laws, primarily in the form of general supervision, and this is one of the basic aspects of its activity. It was precisely to the Prosecutor’s Office that the right was granted to supervise the implementation of the laws of the Russian Federation by state authorities and by organs of local self-government.
In addition, as a result of the requirements of the Constitution of the Russian Federation, the law includes a chapter 2, on supervision of respect for rights and freedoms of an individual and citizen.
In accordance with the procedural legislation of the Russian Federation, prosecutors take part in the examination of cases by courts and challenge judicial decision, sentences and orders that contradict the law.
In Russia’s present conditions, supervision by the Prosecutor’s Office of respect for human rights is an essential element of human rights protection, as citizens have the possibility of obtaining redress for the violation of their rights within a short time and without having to pay legal costs. At the same time, the fact that the Prosecutor’s Office has such a function does not usually deprive a person of the possibility of instituting judicial proceedings in respect of such matters or of lodging a complaint against the acts of an official.
Thus, 120 000 illegal acts by organs of local self-governments and officials, violating citizens' rights, have been set aside over the last two years as a result of prosecutors’ objections. The Prosecutor’s Office also institutes court proceedings to protect persons belonging to the least protected sections of the population (children, the elderly, the disabled, etc.).
At the same time, the activities of prosecutor’s offices in the field of protection of citizens' rights and freedoms are not a substitute for the functions of the office of the Commissioner for Human Rights which is being established in Russia. In accordance with the federal constitutional law of the Russian Federation “On the Office of the Commissioner for Human Rights in the Russian Federation”, adopted on 26 February 1996, it is only intended to set up in Russia a mechanism capable of fully ensuring actual and full respect for the constitutional rights and freedoms of citizens.
Moreover, under Article 3 of the law “On the Office of the Commissioner for Human Rights in the Russian Federation”, the Commissioner's activities supplement the existing means of protection for the rights and freedoms of citizens, and do not abolish or place under review the competence of state bodies ensuring the protection and restoration of violated rights and freedoms.
In the longer term it is intended to deal with the question of establishing a system of administrative courts and transferring the supervision of the administration to their jurisdiction.
In the light of the foregoing, any changes in the status, structures, objectives and forms of activities of the Prosecutor’s Office in the Russian Federation should be carried out not in isolation, but rather in relation with changes in the judicial and indeed the entire legal system of the state.
D. Abolition of the death penalty
Paragraph 33. The moratorium introduced in August 1996 on the execution of death penalties is being observed. Article 184 of the Penitentiary Code, as mentioned earlier, has already been modified by the law on amendments to the Penitentiary Code; therefore the fears relating thereto are now groundless. The claim that the moratorium has no legal basis is not, in our opinion, quite correct. According to Article 18 of the 1969 Vienna Convention on the Law of International Treaties, which is an integral part of the Russian Federation's legal system (Part 4, Article 15 of the Constitution of the Russian Federation), a state signatory to a treaty (in this particular instance — Protocol No. 6 to the European Convention on Human Rights) is required to refrain from any actions which would deprive the treaty of its object and purpose (in this particular instance —to refrain from executing death sentences) until Protocol No. 6 of the Convention on Human Rights enters into force for the Russian Federation or until the Russian Federation decides not to ratify Protocol No. 6.
Thus, the commitment not to execute penalty sentences is already embodied in the Russian Federation's legal system.
The signing of Protocol No. 6 provoked a considerable social reaction indicative of differing approaches to this problem. Social research into this issue is currently being actively conducted, and the issue is regularly raised in the mass media. In any case, it is necessary to correlate decision-taking on the abolition of the death penalty to social attitudes towards such a step.
Paragraph 36. Naturally, the judicial mistakes are made in the activities of courts in the Russian Federation, just as in any other country in the world. However, the opinion that these mistakes are made in 30% of cases carrying the death penalty, is a personal opinion of Deputy Borshchev and is not substantiated by any reliable evidence.
E. Prosecution of human rights violations in Chechnya
About 2 000 sets of proceedings were instituted in 1995-96 by the Chief Military Prosecutor’s Office for offences committed on the territory of the Chechen Republic including 147 sets of proceedings relating to crimes against the civilian population. In the latter category fifty sets of criminal proceedings have been completed: twenty-seven were discontinued and twenty-three referred to the courts. Twenty-three persons have been convicted. Altogether, for offences committed in Chechnya during 1994-96, criminal proceedings were instituted against 1 143 persons, of whom 396 were brought to trial. Two hundred and thirty-two servicemen were convicted. The requirement that all offences committed in the territory of the Chechen Republic be investigated and the culprits prosecuted is a just one, but it is extremely difficult to meet. Today, it is not easy to carry out investigations in the territory of the Chechen Republic. The Prosecutor’s Office of the Chechen Republic does not investigate offences committed by Chechen combatants.
Moreover, the requirement to punish all those guilty of offences committed during the period of military hostilities will inevitably call in question the legitimacy of the present Chechen leadership, whose members were personally involved in terrorist acts against the civilian population outside Chechnya. This will significantly hamper the process of negotiations between Moscow and Grozny.
It should also be noted that on 12 March 1997 the State Duma, in the interests of achieving a political settlement, adopted a decision granting an amnesty to those who committed socially dangerous acts in connection with the armed conflict in the Chechen Republic.
F. Conditions in prison
Public opinion as well as the executive and legislative authorities are well aware of the problem of poor detention conditions for arrested and convicted persons. Efforts to tackle the problem are, however, being hampered by a serious shortage of financial resources in the country.
In addition to the measures described in paragraphs 42 and 43, in March 1998 the Government of the Russian Federation submitted to the State Duma for consideration a draft law amending eighteen legislative instruments of the Russian Federation in connection with transferring the penitentiary system to the jurisdiction of the Ministry of Justice.
We would like to make some brief remarks on the issue. The draft report does not always distinguish between the issue of the conditions of pre-trial detention and that of the imposition and execution of custodial sentences.
The worst conditions have arisen in pre-trial detention centres. A high level of crime and a significant proportion of serious and highly serious crimes, accompanied by the underdeveloped system of release on bail, is hindering a reduction in the number of detainees.
Procedures concerning the choice and execution of pre-trial detention have an adequate legal basis, being regulated by the federal law “On Detention of Persons Suspected or Accused of Offences” If the provisions of this law were strictly observed, there would be far fewer grounds for criticising the situation in pre-trial detention centres. However, the difficult economic situation in the country is still preventing many provisions of the law from being applied.
The need to reduce periods of pre-trial detention is evident. Both investigating bodies and courts are responsible for the unjustifiable length of such periods. For organs of inquiry, the law prescribes a maximum (albeit rather lengthy) period of detention for an accused person (with the General Prosecutor’s authorisation — up to two years). At the same time, courts have proved not to be bound by any specific period, and a detained person whose case is referred to a court may be kept in prison for an unlimited term.
We also hope that the ratification of the European Convention of Human Rights will speed up the examination of cases by courts and the implementation of an accused person's right to appear before a court as soon as possible, in accordance with Article 5.3 of the Convention. We believe that appropriate provisions should be incorporated into the new Code of Criminal Procedure.
As for the execution of criminal sentences, Article 44 of the Criminal Code, which enumerates such sentences and provides, in particular, for penalties in the form of arrest and restriction of freedom (as opposed to deprivation of freedom), has not yet fully become effective. The organisational and material conditions required for the application of non-custodial alternatives to imprisonment have not yet been created. The federal law “On the Entry into Force of the Criminal Code of the Russian Federation” stipulated that these provisions would come into effect “not later than the year 2001”.
Russia fully shares the concern about conditions of detention in penitentiary institutions and intends to take remedial legislative, organisational and financial measures. The ratification by Russia of the European Convention on Human Rights and the Convention on the Prevention of Torture and Inhuman or Degrading Treatment and Punishment, as well as the transfer of penitentiary institutions to the jurisdiction of the Ministry of Justice, can play an important role in this regard.
Paragraph 44. Not everybody in Russia agrees with the view of the Moscow Centre for Prison Reform that the transfer of administrative functions to the Ministry of Justice may worsen the management of penitentiary institutions, or with the proposal to decentralise the criminal law-enforcement system through the partial transfer of administrative functions to regional authorities.
At present, a highly centralised structure for administering bodies and institutions within the Russian Interior Ministry’s penitentiary system is functioning in accordance with the law of the Russian Federation “On Institutions and Bodies Executing Criminal Sentences in the Form of Deprivation of Freedom”. The law, however, makes a demarcation of powers between central and territorial bodies and institutions responsible for the execution of sentences, including organisational and staff training within the penitentiary system. The Ministry of Justice will retain the administrative structure of administering the existing federal penitentiary system, which will make it possible to draw up and implement the general concepts and principles of criminal law-enforcement policy as well as minimal standard rules for the treatment of prisoners throughout the Russian Federation.
It is puzzling that, according to the report, human rights organisations are concerned that even after the transfer of the administration of the penitentiary system to the Russian ministry of Justice the personnel of pre-trial detention centres and prisons will retain their military ranks and continue to work for the same institutions.
The personnel of the penitentiary system have no military ranks or military status. Service in the penitentiary system is a special type of federal civil service.
In this connection the personnel have special ranks, social benefits and guarantees for work in conditions entailing danger to life and health. Candidates are recruited on a contractual basis, which enables them to be carefully selected with due regard to personal qualities and competence as well as educational and professional level.
The establishment of a high official status and social standing for penitentiary personnel is primarily aimed at preserving personnel potential and reforming the penitentiary system in accordance with the Concept of Reforming the Penitentiary System up to the Year 2005.
Paragraph 49. We would like to specify that the amnesty, does indeed cover about 435 000 people. 35 000 of them will be released from prison, and the term of imprisonment of 51 000 detainees will be reduced. The rest of those covered by the amnesty were not in penitentiary institutions.
Paragraph 50. The Prosecutor’s Office and the Ministry of the Interior have recently paid closer attention to the problem of the harsh treatment of detainees. Several trials were conducted, as a result of which some members of organs of inquiry and the militia were convicted of obtaining forced testimonies.
As for the principle of the presumption of innocence, it is embodied in Article 49 of the Constitution of the Russian Federation. The attitudes of personnel in the system of criminal justice should perhaps be modified, but the fact that investigatory bodies spend a fairly long time preparing the relevant documents for submission to a court means, inter alia, that they understand the need to present to courts a sufficient amount of evidence of the accused's guilt, which shows the courts’ commitment to the principle of the presumption of innocence.
G. Application of laws
Freedom of movement and choice of residence
Paragraphs 52-54. The institution of “propiska” (residence permit) has, it will be recalled, been formally abolished in the Russian Federation. It is true, however, that attempts to restrict freedom of movement and choice of residence (introduction of compulsory registration) are made by the authorities of some cities and regions which justify their action by invoking the negative influence of population inflows on law and order and the social situation. In examining these cases, the Russian Federation courts consistently uphold the rights and interests of citizens. In particular, on 2 February 1998 the Constitutional Court decided that paragraphs 10, 12 and 21 of the Rules on the registration and re-registration of Russian Federation citizens, approved by the Russian Federation Government's Resolution of 17 July 1995, were incompatible with the Russian Federation's Constitution. According to this decision, the function of registration should be notification rather than authorisation. Moreover, the decision declared that the grounds for refusing registration at the place of residence or stay were incompatible with the Russian Federation's Constitution. In accordance with this decision, Russia's Ministry of the Interior prepared and submitted to the Government some proposals for amending the Rules in order to ensure the exercise by Russian Federation citizens of their rights under Article 27 of the Constitution. At the same time, work is under way to prepare amendments to the relevant implementing regulations.
Paragraph 54. Article 55 of the Russian Constitution provides for the possibility of restricting certain rights and freedoms by law. However, following an examination of the federal law “On the Procedure for Leaving and Entering the Russian Federation”, the Constitutional Court declared unconstitutional the federal law's provisions that obstruct the issue to citizens of a passport needed for leaving and entering the Russian Federation. The practice of temporarily restricting exit from the territory of the state for certain citizens also exists in a number of other European countries. Russia is apprehensive about the introduction by several western countries of de facto restrictions (tightening of the visa regime) on entry by Russian citizens into their territory on the pretext of combating Russian organised crime. This, in essence, leads to the creation of a new version of the “iron curtain” in Europe.
Paragraphs 55-57. As the decrees mentioned in this sub-section have been repealed, the analysis thereof appears anachronistic. With regard to the excessive number of presidential decrees in relation to parliamentary laws, this is the normal practice of states.
Section III. The development of democracy
Regrettably, the report does not contain an analysis of the steps taken by Russia in recent years to incorporate into law the principles of democracy and freedom of elections as well as the manner in which they are implemented. The following federal laws have been adopted in the Russian Federation: “On Basic Guarantees for Electoral Rights and the Right of Citizens of the Russian Federation to Participate in Referenda”, “On Elections of Deputies of the State Duma of the Federal Assembly of the Russian Federation”, “On Additions to the Criminal Code and the Code of Administrative Offences with Regard to Violations of Electoral Legislation”, “On Elections to the Presidency of the Russian Federation” and “On Ensuring the Constitutional Rights of Citizens to Elect and be Elected to Organs of Local Self-Government”.
Elections to the Presidency, as well as elections of members of the legislative (representative) organs and heads of administration of several dozen constituent entities were held in the Russian Federation in 1996-98.
The formation of civil society is also the purpose the laws “On Trade Unions, their Rights and Guarantees for their Activities” and “On Public Associations”, which are now in force.
Paragraphs 58-59. There are various points of view in the Federal Assembly as to the character of the powers of the President of the Russian Federation. Alongside the supporters of strong presidential authority, political parties that consider the President's powers excessive and favour a strengthening of the legislature's role are widely represented in the State Duma.
The question of the President’s readiness for dialogue with all the political forces in the country is rather complex. At least some of the President's actions — in particular those connected with the resignation of the Russian Federation's Government on 23 March 1998 and the procedure for nominating a new Prime Minister were criticised by political parties precisely because of the lack of what they regarded as a necessary consultation procedure.
Paragraph 60. In the opinion of the majority of the members of the Federal Assembly delegation of the Parliamentary Assembly, many reforms in Russia have been unsuccessful not because “powerful conservative forces in the Duma are slowing down the process of reform”, but because of serious miscalculations in their implementation and the absence of a comprehensive transformation strategy taking account of the political, social, economic and ideological situation in the country.
Paragraph 62. The statement that numerous parties and pre-election blocs have replaced the Communist Party of the Soviet Union is not that easy to understand. At present, political parties operate in the fundamental different conditions of a democratic, multi-party system. Pre-election blocs are formed only in the run-up to elections and do not currently function throughout the Federation.
Paragraph 65. The aims mentioned in this paragraph stem from the 1993 Constitution of the Russian Federation; the Federal Assembly is guided by them in its legislative activities. In this context it is not quite clear what “reformers” and documents are being referred to.
Paragraph 66. The federal law on the judicial system, adopted by the State Duma on 23 October 1996, incorporated into law the constitutional basis of the Russian judicial system and the principles of court activities and defined the role of the judiciary as well as the implementation thereof through constitutional, civil, administrative and criminal proceedings. The law contains a list of courts comprising the judicial system of the Russian Federation and regulates the creation and functioning of courts of various types and levels as well as their organisational support and financing. It also lays down the democratic principles of activities of the courts, specifies the basis of judges' status and stipulates conditions concerning the establishment and competence of organs of the judicial progression.
The law forms part of a set of major legislative instruments governing the present judicial system of Russia. Among them are the federal constitutional law “On the Judicial Department under the Supreme Court of the Russian Federation” of 8 January 1998, which removed the administration of justice from the purview of the executive (Ministry of Justice) and placed it, including questions of court financial, material and technical support, under the jurisdiction of the Judicial Department. In June 1997 federal laws “On Bailiffs” and “On the Execution of Court Decisions” were adopted in order to ensure precise and prompt execution of judicial texts as well as the regulatory texts of certain other bodies.
Paragraph 67. Unfortunately, this paragraph does not contain any analysis of the causes of the spread of corruption and organised crime.
In the Russian Federation, decisions on punishment or prevention are taken by the courts, not by the “authorities”. On recourse to alternative forms of punishment, see the comments above.
Paragraph 68. The aim of creating a professional army, in the sense that servicemen would perform their duties on a purely contractual basis, has been announced by the President of the Russian Federation, but its implementation will take a fairly long time. Lately a number of important legislative texts related to the army were adopted. Among them are the laws “On the Status of Servicemen”, “On Conscription and Military Service” and “On Military Courts of the Russian Federation” as well as several others.
B. Reform of the secret services
The Russian Federation has taken a number of steps for the legislative regulation of the security services' activities. The 1995 federal law “On Bodies of the Federal Security Service in the Russian Federation”, the law “On External Intelligence”, the law “On Operational Investigation Activities” and a number of other instruments determining the sphere of competence and powers of the security services are in force in the Russian Federation. There are serious doubts about the quoted number of security officers. As regards parliamentary control, the Federal Assembly's chambers have committees on security whose sphere of competence includes, inter alia, questions relating to security service activities. The security services' budget is approved by a special commission as part of the general budgetary process. According to the Constitution, the security services sector is not the only one over which the Federal Assembly is not vested with supervisory functions.
Neither the Statute of the Council of Europe nor the European Convention for the Protection of Human Rights and Fundamental Freedoms, nor other instruments of international law set any universal standards regarding the distribution of powers among security services. According to its status, the Federal Security Service is not only a special service but also a law-enforcement body (as stipulated both in the Law and in the Russian Federation President's Decrees No. 567 of 18 April 1996 and No. 278 of 3 April1997).
The reason for this is that organised crime and corruption (as recognised in paragraph 67 of the report) have become a major danger to the security of society and one of the main obstacles to establishing the rule of law. “Criminal” offences often have an international dimension. Illegal arms trafficking, directly connected with numerous acts of terrorism, has acquired significant proportions. The degree of corruption among state authorities, including law-enforcement agencies, remains high. In the opinion of many politicians in Russia, including a considerable proportion of Federal Assembly members, the concentration of crime control within a single agency (the Ministry of the Interior of the Russian Federation), can have dangerous consequences for society, especially at regional level.
Unfortunately, the prevalence of crime in Russia makes its inadvisable to strip the Federal Security Service immediately of its powers in the combating of organised crime, corruption, smuggling, terrorism, etc.
Opinion No. 193 (1996) does not contain any recommendation to deprive the Federal Security Service of its right to investigate criminal cases. This area of the FSB activities is fully regulated by the RSFSR Code of Criminal Procedure and is subject to continuous procuratorial supervision as well as with regard to some aspects, judicial control. Criticism of these activities of the FSB is justified to the same extent as criticism of investigatory units of the Prosecutors’ Office as well as organs of the Ministry of the Interior and the tax police.
From the practical point of view, the crime control powers of the FSB bodies are fairly limited in scope, covering only illicit international trafficking in arms, drugs, jewellery and cultural assets by organised criminal groups.
In the opinion of the executive and the relevant committees of the State Duma, the experience of 1993-94 shows that the immediate abolishment of the FSB's investigatory units at the present juncture would be liable to the effectiveness of efforts to combat what are the most serious criminal phenomena as far as society and the state are concerned of crime and, consequently, would run counter to public interests.
As regards the pre-trial detention centres within the system of the Federal Security Service, it is rightly noted in the draft report that the question of their transfer to the Ministry of Justice will be dealt with within the context of the general reform of the Russian Federation's penitentiary system, carried out in accordance with Presidential Decree No. 1100 of 8 October 1997.
Any comparisons between the FSB and the KGB are unjustified. The KGB operated within a totally different political and legal system and, moreover, performed the function of a repressive political apparatus. Consequently, any attempts to draw parallels do not appear convincing. The decisive considerations in the evaluation of secret services, are in our opinion, the substance of their activities, the degree to which those activities are regulated by legislation and the respect shown for legality by the secret services themselves.
C. Ill-treatment in the armed forces and the adoption of a law on alternative military service
Attempts have recently been made to strengthen the legal regulation of the armed forces. The laws adopted include the above-mentioned statutes “On the Status of Servicemen”, “On Conscription and Military Service” and “On Military Courts in the Russian Federation”. However, the conditions of military service are still fairly severe owing to a serious lack of finance. The problem of irregular treatment is far from being resolved, though it is now attracting much more public attention.
As for the law on an alternative service, it is being worked on and is due to receive its next reading this summer.
D. Protection of minorities
Paragraph 75. Some delay in the ratification of the Framework Convention for the Protection of National Minorities has been caused by the discussion in the State Duma about the definition of the concept “national minority” and, hence, the determination of the communities to which the convention will apply in the Russian Federation. There are also questions concerning the procedure for applying the convention in the constituent entities of the Russian Federation. Moreover, in pursuance of the law “On International Treaties of the Russian Federation” there has arisen a need to obtain presidential approval of the declaration accompanying the ratification of the convention.
As regards the essence of the matter, it is true that the legislation of the Russian Federation provides for adequate protection of national minorities rights. As a result of Russia's federal nature, many ethnic groups in its territory have their own statehood and consequently enjoy rights to a far greater extent than is required by the Constitution. However, this does not mean that the problem has been solved. As is well known, Russia is experiencing some fairly acute inter-ethnic conflicts, especially in the Northern Caucasus. Both the executive and the legislature are constantly keeping these under review and are taking measures to achieve a peaceful settlement thereof on the basis of respect for human rights and national minorities.
E. Guarantee of local self-government
Paragraphs 76-77. Russia has ratified the Charter of Local Self-Government; the relevant law, after being adopted by the Federal Assembly Chambers, was signed by the President of the Russian Federation on 11 April 1998.
The principles of local self-government embodied in the Russian Federation's Constitution and in its domestic legislation — including the federal laws “On Local Self-Government in the Russian Federation”, “On the General Principle of the Organisation of Local Self-Government”, “On the Financial Foundations of Local Self-Government” and “On Ensuring the Constitutional Rights of Citizens to Elect and Elected to Local Self-Government Bodies” — are not only consistent with the Charter but guarantee even broader rights in the field of self-government both by citizens and by local authorities.
The main obstacle in the way of strengthening and developing the system of local self-government remains the shortage of financial resources among local authorities.
As far as the report is concerned, it should be pointed out that the wording of paragraph 77, regarding the three levels of power in the Russian Federation, does not convey altogether accurately the meaning of local self-government in a quite correct manner. In accordance with current legislation, organs of local self-government are not necessarily set up in certain municipal entities: local issues may be resolved by means of various forms of direct consultation. That is why, instead of the level of an “organ”, reference should be made to the level of local self-government.
The same paragraph contains a not altogether correct interpretation of the Constitutional Court's decision of 24 January 1997 on the review of the constitutional law of the Udmurt Republic of 17 April 1996 “On the System of Organs of State Power in the Udmurt Republic”. The principles of local self-government are set forth in the Constitution of the Russian Federation and the federal laws. The Constitutional Court of the Russian Federation has confirmed the right of the Udmurt Republic to establish autonomously a system of organs of state power, but has specified that these organs may not set up organs of local self-government, appoint officials of local self-government or address local issues. Thus, the Parliamentary Assembly's conclusion concerning the confirmation by the Russian Federation's Constitutional Court of the Udmurt Republic right to establish representative and executive organs of power of the third level (organs of local self-government) is not correct.
Section IV. Transition to a market economy
Russia's transition to a market economy is a highly complex separate subject indirectly related to the problems concerning the fulfilment by Russia of its obligations as a member of the Council of Europe.
Obviously, it was rather difficult to highlight adequately in the report the economic problems that Russia is facing today. This may be the reason why the report does not cover the key issues. As far as the delegation is aware, this will be the subject of a separate report which is being prepared by the Commission on Economic Affairs and Development.
Specifically, our comments on the text are as follows:
Paragraph 78. The statement that any individual initiative was killed over a period of seventy years is too categorical. Otherwise, how is it possible to explain the rapid growth in the number of private enterprises that took place in Russia in the late 1980s (over 60% of the GDP is currently produced in the non-state sector)? The rapporteur's assessment of the pre-1985 situation concerning the death penalty is not based on laws and realities.
Paragraph 79. The economic reintegration of the former USSR states into the framework of the CIS is proceeding in a number of different directions. Several hundred agreements have been signed, including a treaty on an economic union and a customs union, as well as various other important instruments. The fact that the efficiency of these instruments is manifestly is a different matter.
Paragraph 80. The reason and mechanisms of the hyperinflation that occurred in Russia from 1992 to 1995 were, in our view, quite different from those mentioned in the report.
Paragraph 81. The first programme of privatisation was launched in Russia in 1992. The attitude of directions of major enterprises toward privatisation was a very mixed one, but a significant proportion of them supported it (possibly for reasons of self-interest).
Questions concerning state property privatisation are at present governed by the federal law of 21 July 1997 “On Privatisation of State Property and the Fundamental Principles of Privatisation of Municipal Property in the Russian Federation”.
In our view, the reference to “open opposition” to privatisation needs clarification. There are a fairly large number of reasons and forms applicable to the struggle surrounding privatisation; but what is of fundamental importance is the question of the impact of privatisation on economic development, which is not examined in the report.
It is not clear why television broadcasting is mentioned in the context of the problem of emergence of monopolies. The activities of TV companies are regulated by a number of laws. Either the state owns the two largest TV companies or it holds a controlling proportion of their shares. There are also several hundred private TV companies (including cable television) operating in the country.
Paragraph 82. Russia's foreign trade (as opposed to domestic trade) is not mainly based on barter. A situation where a commodity is paid for in hard currency has nothing to do with barter (commodity exchanges). Major foreign investment can hardly be a panacea capable of making enterprises successful. This necessitates, first of all, internal investment, a favourable investment climate and a number of other factors.
Paragraph 83. The problem of the social consequences of the reforms is indeed the most complex and painful one for Russia. So far the country's leadership has not been able to find a solution to it. More than 32 million people have incomes lower than the official poverty level. This problem can scarcely be resolved simply by reducing “expenditure” as proposed in the report.
Paragraph 84. In the Soviet period the foundations were laid for environment protection legislation. In particular, such pieces of legislation were adopted as the Fundamentals of Land-Use Legislation (1968), the Fundamentals of Water Resources Legislation (1970), the Fundamentals of Legislation on Sub-soil Resources (1975), the Fundamentals of Forestry Legislation” (1977), the law on the Protection of the Atmosphere (1980) and the law on the Protection and Use of Wildlife (1980). A long-term state programme for the protection of the environment and the rational use of the natural resources of the USSR was drawn up. In 1998 a specialised state system for nature protection was established.
The main aims of present-day ecological policy are to overcome the negative effects of violations of ecological standards by industry and to stabilise the ecological situation during the country’s emergence from the economic crisis (Russian Federation President's Decree No. 440 of 1 April 1996, “On a Plan for the Russian Federation's Transition to Sustainable Development”). Practical steps are being taken to protect nature and the environment.
The following laws have been adopted and are in force at federal level: “On the Elimination of Chemical Weapons”, “On the Safe Handling of Pesticides and Agrochemical”, “On the Use of Atomic Energy”. “On Ecological Expertise” and “On Wildlife”. There are also a Water Resources Code of the Russian Federation and a Forest Resources Code of the Russian Federation.
The law of the Russian Federation “On the Protection of the Surrounding Nature Environment” came into force in 1992. Draft laws concerning the safety of nuclear weapons and nuclear waste have been submitted to the State Duma for consideration.
V. Areas of political and military tension
Paragraph 89. The decision to use military force in Chechnya was taken by the President of the Russian Federation, who is the Supreme Commander-in-Chief under the Constitution. A whole series of documents containing sharp criticism of this decision and a demand to settle the conflict by peaceful means was adopted by the Chambers of the Federal Assembly. As for the status of the Chechen Republic, it must be determined with due regard to the provisions of the Russian Federation's Constitution and on the basis of observance of the principle of the territorial integrity of the Russian Federation.
B. Relations with allied countries
The existing sources of conflicts in the territory of the former USSR are having a negative impact on the political situation in Russia as well as on the integration processes in the CIS.
Russia has been bearing the main burden of peace-keeping operations for many years despite the involvement of the UN, the OSCE and other international organisations in the settlement of conflicts. By dint of persistent efforts Russia has managed to achieve important results in the settlement process: all military activities have ceased, a steady cease-fire is being maintained, the settlement has been translated into political terms and intensive negotiations are under way.
The present situation regarding the settlement of conflicts is as follows:
Paragraph 90. The Nagorno-Karabakh conflict is the oldest one. Settling it is proving a complex matter owing to deep divergences between the positions of the parties to the conflict.
The proposals by the Co-Chairmen of the OSCE Minsk process — Russia, the United States of America and France — on a step-by-step settlement of the conflict (the first stage is the conclusion of an agreement on the cessation of the armed conflict, the return of Azerbaijani refugees to the liberated districts and the lifting of the blockade against Armenia; the second stage is the reaching of an agreement on the status on Nagorno-Karabakh) were accepted in October 1997 by the leaders of Armenia and Azerbaijan as a basis for negotiations. The Nagorno-Karabakh leadership is rejecting the proposals and insisting on a “package” solution.
The governmental crisis in Armenia and the ensuing
The intricate situation that has arisen around the Nagorno-Karabakh conflict requires further efforts by the OSCE Minsk Group, whose mediating potential is far from exhausted.
The co-chairmen of the OSCE Minsk process are consulting each other on further steps in the Nagorno-Karabakh settlement.
Paragraph 91. Negotiations on a political settlement of the Georgian-Abkhasian conflict have been proceeding since 1994 under United Nations auspices and with Russia’s mediation. The parties have throughout been sticking to their rigid, uncompromising positions on the key problems of a settlement: the future state and legal relations between Georgia and Abkhasia and the return of the refugees.
Russia’s initiatives of June-August 1997 and the Shevardnadze-Ardzinba meeting organised with Russia’s mediation made it possible to engage the parties in a direct dialogue, move their positions closer and, above all, agree upon the text of a Protocol on a Georgian-Abkhasian Settlement. But then the negotiations came to a standstill once more. The Georgian leadership is now trying to solve the problem to its own advantage through basically forcible methods, having gambled recently on the application of the “Bosnian model” to the Abkhas settlement. Such a course can only gravely destabilise the situation in the conflict zone, where a fairly peaceful environment is ensured by the presence of the Collective Peace-keeping Force (CPKF).
A serious problem has been created by the terrorist activities of various armed groupings in the conflict zone, which are increasingly directed against the Russian peace-keepers.
The Geneva meeting of the parties in November 1997 helped to maintain the momentum of the negotiating process. It now remains to activate as effectively as possible the Co-ordinating Council with its working groups on practical aspects of a settlement — a mechanism established under the Geneva agreements.
Noticeable progress has been made with the active
participation of Russia in the settlement of the Georgian-Ossetian conflict.
The confidence of the parties is growing and the refugees are returning. A
dialogue has been established between E. Shevardnadze and
Without material support for South Ossetia, however, efforts in the political sphere may prove inadequate. What is required is the fulfilment of the previously given pledges to assist the restoration of South Ossetia's war-ravaged economy.
Paragraph 92. In settling the Transnistrian problem under the Memorandum on the Fundamentals of the Normalisation of Relations between Moldova and Transnistria (May 1997), the parties agreed, with the participation of the mediators, on a draft document concerning the division of areas of responsibility and the delegation of powers. Tiraspol however, has tried to interpret this document in its own way, having put forward a draft “Declaration of the Statehood of the Transnistrian Moldovan Republic”.
The advancement of the negotiations and the constructive nature of the co-operation with the OSCE and Ukraine with regard to Transnistria offer grounds for hoping for the emergence in the near future of a solution to the fundamental problems in the whole settlement process. Currently, the principal efforts are being focused on the solution of questions concerning the delimitation of powers between Kishinev and Tiraspol, the preparation of a document on creating an economic, social and legal area within a common state, the adoption of confidence-building and tension-reducing measures in the security zone, and the settlement of military-property issues connected with the presence of Russian troops in Transnistria.
The signing at the Odessa meeting on 19-20 March 1998 of an “Agreement on Confidence-Building Measures and Measures for the Development of Contacts between Moldova and Transnistria” as well as a “Protocol of Arrangements on Military-Property Issues” connected with the presence of Russian troops in Transnistria proved a significant step towards the full normalisation of relations between Transnistria and Moldova within a common state.
Attempts to aggravate the problem of the withdrawal of Russian troops and weapons can only go against the existing Russian-Moldovan understanding in the matter, including with reference to the stabilising role of Russian troops in the conflict zone.
Paragraph 93. Certain assertions in this paragraph do not reflect important aspects of Russia’s relations with the neighbouring states.
Russia’s relations with Latvia and Estonia are clouded by ongoing widespread human rights violations in these countries, the oppression of their Russian-speaking populations and the policy pursued by their leaders with the aim of creating a mono-ethnic state. The scandalous incident which happened in Riga on 3 March, when a rally of old-age pensioners, mostly Russian-speaking residents, was dispersed by force, followed shortly afterwards by a procession of SS veterans which received the approval of the Latvian authorities, led to a sharp aggravation of Russian-Latvian relations. In several Russian regions a movement for the imposition of economic sanctions on Latvia has begun, and similar proposals have been made by the Federal Assembly. Until such time as respect for the rights of Russian-speaking residents is guaranteed, a settlement of Russia’s relations with these states is out of the question.
If the Council of Europe were to take up a firm position on manifest violations of the European standards regarding respect for human rights and the rights of ethnic minorities in Latvia and Estonia, this, in our opinion, could help to improve the situation and enhance the Council of Europe's authority.
The fundamental stages in the development of Russian-Belarusian relations are not mentioned in the report. The Union of Belarus and Russia was established in April 1997 and a joint parliamentary assembly is now functioning. The west's policy trying to isolate Belarus is not supported by the majority of the Federal Assembly's members, who consider it short-sighted. In the Russian Federation's Parliament, the democratic process has led to concerns being voiced about the situation in Belarus. However, the general view is that all issues should be resolved by the pursuit of dialogue and co-operation with the state.
Paragraph 94. Substantial progress has been achieved in Tajikistan. A general peace and reconciliation agreement was signed in Moscow in June 1997. the National Reconciliation Commission has been operating since September 1997, the return of the Tajic refugees from Afghanistan has practically been completed, the opposition groups are gradually being disarmed and reintegrated into the state power structures, a new constitution is being drafted and unitary executive bodies are being formed. The leader of the radical opposition wing, A. Turanjonzoda has returned to Dushanbe and taken up the post of first deputy prime minister. Russia and the international community are paying increasing attention to questions concerning the restoration of Tajikistan's economy. The Vienna Conference of donor countries, held in November 1997, was an important stage in this process.
Reconciliation is, however, being complicated by the internal conflicts, attempts to have the agreements reviewed, and the power aspirations of various “third forces”. The instability in Afghanistan is also having a negative effect.
The CIS Collective Peace-Keeping Force from Russia, Uzbekistan, Kazakhstan and Kirgizia, totalling 5 600 people, is contributing to the process of national reconciliation in Tajikistan. The UN observers' mission is also serving the same purpose.
Unfortunately, the rapporteurs have disregarded what is in our opinion, the main problem existing in Russia — the ongoing systematic, large-scale violations of human rights in social sphere, including the non-payment of wages, pensions, etc. As for the remaining conclusions, they call for the following remarks:
Paragraphs 95-96. In our opinion, despite the Chechnya conflict, the political reforms in Russia (the strengthening of legality and democracy) are on the whole progressing.
At the same time, the recent situation connected with the resignation of the Government and the President’s position on the appointment of a new Prime Minister show that, regrettably, not all acute political problems, including those arising in relations between the executive and the legislature, are at present resolved by consensus.
Paragraph 98. In the case of Moldova and Transcaucasia, we do not believe the parties to the conflict are pursuing a policy that would lead to a permanent renunciation of confrontation.
Reporting committee : Committee on the honouring of obligations and commitments by Member States.
Committee for opinion : none.
Budgetary implications for the Assembly : to be assessed by the Committee on the Budget and the Intergovernmental Work Programme.
Reference to committee : Resolution 1115 (1997) of 27 January 1997.
Information report approved by the committee on 15 May 1998.
Members of the committee : MM. de Marco (Chair), Sole Tura (Vice-Chair), Mrs Gelderblom-Lankhout (Vice-Chair), MM. Glotov (Vice-Chair), Akselsen, Atkinson, Averchev, Mrs Aytaman, MM. Bársony, Berceanu, Bindig, Brunetti, Christodoulides, Columberg, Dagys, Davis, Dinçer, Domljan, Mrs Durrieu, MM. Eltz, Fico, Figel, Mrs Fleetwood, MM. Frunda, Gjellerod, Gross, Gusenbauer, Hagård, Jansson, Jaskiernia, Jurgens, Mrs Kautto, MM. Kelam, Kiratlioglu, Kostytsky, Koulouris, Laurinkus, van der Linden, Leoni, Lesein, Magnusson, Marmazov, Martelli, Marten, Melcak, Mota Amaral, Mozetic, Muehlemann, Németh, Pahor, Mrs Poptodorova, Mr Ramirez Pery, Mrs Ringstad, Lord Russell-Johnston, MM. Sceberras Trigona, Schwimmer, Mrs Severinsen, MM. Shishlov, Sinka, Smorawinski, Steolea, Mrs Stoyanova, MM. Tahiri, Urbain, Valkeniers, Weyts, Mrs Wohlwend.
N.B. The names of those members who took part in the meeting are printed in italics.
Secretaries to the committee : Mr Ausems, Mr Dufour, Mrs Chatzivassiliou and Ms Hügel.
1 See Doc. 7443, Annex 3 (High level Russian message of 18 January 1995), Addendum B (Appendix to the high-level Russian message of 18 January 1995), Annex 6 (Legislative developments, letter of 28 August 1995) and Annex 7 (Additional legislative developments, letter of 20 November 1995).
2 In conformity with Article 47.5 of the Assembly’s Rules of Procedure, the Monitoring Committee presents this information report, upon which the Assembly will not be called to vote.
3 A report on this subject is being prepared by the Committee on Legal Affairs and Human Rights.
4 These sentences are not mandatory; it is left to the discretion of the judge to decide how high a sentence to give.
5 The Russian parliamentary delegation holds the view that the death penalty cannot be applied to attempted murder in accordance with Article 56 of the Criminal Code, which is meant to take precedence over the cited articles. We hope their view is shared by the courts of the country .
6 There are over 300,000 pre-trial detainees in Russia at the moment.
7 S.A. Pashin, Juris Doctor, K.A. Moskalenko, Attorney, Moscow Bar Association, and R.R. Maksudov, consultant, Moscow Center for Prison Reform.
8 The State Duma Committee on Legislation and Legal Reform is currently reviewing suggested amendments to the draft law in view of its tabling for a second reading (see Appendix IV).
9 They are, however, also barred from operating educational establishments and the like, being just religious groups.
10 This number has now reached approx. 770 according to the Prosecutor-General.
11 According to the Deputy Minister of the Interior.
12 Especially by the Russian NGO "Memorial", and the international NGO "Human Rights Watch/ Helsinki".
13 For example, against the administrators of Stavropol detention centre.
14 See, for example, the Independent Submission of the Moscow Center for Prison Reform to the UN Committee against Torture, dated October 1996.
15 Ibid, p. 18.
16 Statement by General Kalinin, Head of the Penitentiary Department of the Ministry of the Interior, during parliamentary hearings on 24 October 1995, cited by Mr Abramkin in the Appendix to the Independent Submission of the Moscow Centre for Prison Reform to the UN Committee against Torture, p. 33.
17 For example by the Moscow Center for Prison Reform.
18 Propiska restrictions were formally revoked by the Russian Federation on 17 July 1995; city ordinances containing similar provisions, e.g. requiring individuals to purchase residence permits in Moscow, St. Petersburg and cities in the Stavropol region, were declared unconstitutional by the Russian Constitutional Court on 4 April 1996.
19 For example, the abolition of the propiska system in Moscow was purely semantic, changing from a requirement to obtain a "residence permit" to "registration according to the address at the place one is staying or at one's residence".
20 Human Rights Watch/ Helsinki quotes figures of 4.000 homeless people being detained in a single month, and another 461 being deported outside city limits.
21 A report on corruption is being prepared by the Committee on Legal Affairs and Human Rights.
22 We were informed by the Deputy Director of the FSB, Mr Ossobenkov, during our visit in November 1997, that the FSB has 724 places in its seven pre-trial detention centres, situated in Moscow, St. Petersburg, Saransk, Vladikavkaz, Krasnodar, Rostov and Smolensk, 250 places of which were currently occupied.
23 The list of offences appearing in the law is not restrictive.
24 The opinion of the Russian parliamentary delegation that the withdrawal of the FSB’s criminal investigative powers led to a reduction in the effectiveness of control of the most serious crimes in 1993-94 cannot be substantiated in any way. The rise in crime at that time had more to do with the normal problems of a society in transition than with the FSB’s “lack” of powers.
The chairman of the association “Army and Society”, Nikita Cheldmydov, declared on 19 November 1997 to the press that there had been 314 suicides in the first 9 months of 1997, and 1037 deaths.
26 Modelled, for example, on the German parliamentary ombudsman for the military, the “Wehrbeauftragte”, or on the Finnish ombudsman.
27 "Local self-government shall be recognised and guaranteed in the Russian Federation. Local self-government shall be independent within the limits of its competence. Organs of local self-government shall not form part of the system of organs of state power".
28 Article 12 of the law specifies the scope of local self-government: "Local self-government shall be implemented throughout the territory of the Russian Federation in urban and rural settlements and in other territories. The territories of municipal formations - towns, settlements, large villages, districts (uyezds), rural districts (volosts, rural soviets) and other municipal formations -shall be established in accordance with the laws of the component entities of the Russian Federation, having regard to historical and other local traditions".
29 A report on the economic situation in Belarus, Russia and Ukraine is being prepared by the Committee on Economic Affairs and Development .
30 The two rapporteurs were accompagnied during their visit to Grozny on 11 November 1997 by two members of the ad hoc Committee on Chechnya, MM. Hagard and Laakso.
À. Ë. Áóðêîâ «Êîíâåíöèÿ î çàùèòå ïðàâ ÷åëîâåêà â ñóäàõ Ðîññèè». Ìîñêâà: Âîëòåðñ Êëóâåð, 2010
À. Ë. Áóðêîâ "Âëèÿíèå Åâðîïåéñêîé êîíâåíöèè ïî ïðàâàì ÷åëîâåêà íà Ðîññèéñêîå ïðàâî" (Stuttgart: ibidem-Verlag, 2007)
Øåñòîå èçäàíèå "Ïðèìåíåíèå Åâðîïåéñêîé êîíâåíöèè ïî ïðàâàì ÷åëîâåêà â ñóäàõ Ðîññèè"
Ïÿòîå èçäàíèå "Èñïîëíåíèå ïîñòàíîâëåíèé Åâðîïåéñêîãî ñóäà ïî ïðàâàì ÷åëîâåêà"
×åòâåðòîå èçäàíèå "Ïðàâî íà æèçíü, çàïðåò ïûòîê è áåñ÷åëîâå÷íîãî èëè óíèæàþùåãî äîñòîèíñòâî îáðàùåíèÿ èëè íàêàçàíèÿ: åâðîïåéñêèå ñòàíäàðòû, ðîññèéñêîå çàêîíîäàòåëüñòâî è ïðàâîïðèìåíèòåëüíàÿ ïðàêòèêà"
Òðåòüå èçäàíèå "Ïðàâî íà ñâîáîäó è ëè÷íóþ íåïðèêîñíîâåííîñòü: åâðîïåéñêèå ñòàíäàðòû è ðîññèéñêàÿ ïðàêòèêà"
À. Ë. Áóðêîâ "Âëèÿíèå Åâðîïåéñêîé êîíâåíöèè ïî ïðàâàì ÷åëîâåêà íà Ðîññèéñêîå ïðàâî" (Stuttgart: ibidem-Verlag, 2007)
Øåñòîå èçäàíèå "Ïðèìåíåíèå Åâðîïåéñêîé êîíâåíöèè ïî ïðàâàì ÷åëîâåêà â ñóäàõ Ðîññèè"
Ïÿòîå èçäàíèå "Èñïîëíåíèå ïîñòàíîâëåíèé Åâðîïåéñêîãî ñóäà ïî ïðàâàì ÷åëîâåêà"
×åòâåðòîå èçäàíèå "Ïðàâî íà æèçíü, çàïðåò ïûòîê è áåñ÷åëîâå÷íîãî èëè óíèæàþùåãî äîñòîèíñòâî îáðàùåíèÿ èëè íàêàçàíèÿ: åâðîïåéñêèå ñòàíäàðòû, ðîññèéñêîå çàêîíîäàòåëüñòâî è ïðàâîïðèìåíèòåëüíàÿ ïðàêòèêà"
Òðåòüå èçäàíèå "Ïðàâî íà ñâîáîäó è ëè÷íóþ íåïðèêîñíîâåííîñòü: åâðîïåéñêèå ñòàíäàðòû è ðîññèéñêàÿ ïðàêòèêà"
Øåñòîå èçäàíèå "Ïðèìåíåíèå Åâðîïåéñêîé êîíâåíöèè ïî ïðàâàì ÷åëîâåêà â ñóäàõ Ðîññèè"
Ïÿòîå èçäàíèå "Èñïîëíåíèå ïîñòàíîâëåíèé Åâðîïåéñêîãî ñóäà ïî ïðàâàì ÷åëîâåêà"
×åòâåðòîå èçäàíèå "Ïðàâî íà æèçíü, çàïðåò ïûòîê è áåñ÷åëîâå÷íîãî èëè óíèæàþùåãî äîñòîèíñòâî îáðàùåíèÿ èëè íàêàçàíèÿ: åâðîïåéñêèå ñòàíäàðòû, ðîññèéñêîå çàêîíîäàòåëüñòâî è ïðàâîïðèìåíèòåëüíàÿ ïðàêòèêà"
Òðåòüå èçäàíèå "Ïðàâî íà ñâîáîäó è ëè÷íóþ íåïðèêîñíîâåííîñòü: åâðîïåéñêèå ñòàíäàðòû è ðîññèéñêàÿ ïðàêòèêà"