|
Èñòîðèÿ
âñòóïëåíèÿ Ðîññèè â Ñîâåò Åâðîïû
in Russian
Doc. 8127
2 June 1998
Honouring of obligations and commitments by the Russian
Federation
Information report
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
Summary
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
Pages
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
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
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
I. Introduction
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.
VI. CONCLUSIONS
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."
APPENDIX I
APPENDIX II
Programme
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.
APPENDIX III
APPENDIX IV
COMMENTS
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".
Respectfully,
Alexander Shokhin
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
Rights, of
4 November 1950, as amended by Protocols No. 3 of 6 May 1963, No. 5 of 20
January 1966 and No. 8 of 19 March 1985 and as supplemented by Protocol No. 2 of
6 May 1963 and Protocols No. 1 of 20 March 1952, No. 4 of 16 September 1963, No.
7 of 22 November 1984, No. 9 of 6 November 1990, No. 10 of 25 March 1992 and No.
11 of 11 May 1994, was adopted by the State Duma on 20 February 1998, then
approved by the Federation Council on 13 March and signed by the President of
the Russian Federation on 30 March 1998.
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
20 February 1998, approved by the Federation Council on 13 March 1998 and signed
by the President of the Russian Federation on 28 March 1998.
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
16 000 religious organisations of different confessions in Russia at 1 January
1998. Their activities will be governed by the new federal law “On Freedom of
Conscience and Religious Associations”, which entered into force on 1 October
1997.
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.
Presidential decrees
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
resignation of
President Ter-Petrosyan on 4 February 1998 have further complicated the
settlement process and slowed down its progress.
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
L. Chibirov. A draft document is being drawn up which will define the main
aspects of state and legal relations between the parties.
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.
CONCLUSIONS
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.
25
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.
|
